Research › Search › Judgment

Andhra High Court · body

2005 DIGILAW 619 (AP)

Waheed Bin Mohammed v. Niazunnisa Begum

2005-07-12

T.CH.SURYA RAO

body2005
ORDER The instant revision petition is directed against the order dated 1-7-2005 passed by the learned Principal Junior Civil Judge, Karimnagar, in I.A.No.989 of 2005 in O.S.No.361 of 2003. 2. The unsuccessful petitioner is the revision petitioner herein and he is the defendant in the suit O.S.No.361 of 2003 filed by the respondent herein seeking the relief of eviction of the defendant from the suit schedule shop No.15, for recovery of an amount of Rs.16,000/- as arrears of rent and for profits at Rs, 4,000/- per month with effect from 1-7-2003 by way of damages for unlawful use and occupation by the defendant. While the suit was pending adjudication before the trial Court, the defendant filed I.A.No.989 of 2005 requesting the Court to return the plaint. That application having been resisted by the plaintiff and after having heard on either side, under the impugned order, came to be dismissed. The revision petitioner is, therefore, seeking to assail the same. 3. The suit O.S.No.361 of 2003 filed by the plaintiff on the premise that she was the landlord of the demised premises and the defendant was the tenant she having let out the premises to him on a monthly rent of Rs. 1,600/- with effect from 1-12-2000 and the defendant since September, 2002 continuously committed default in paying the rents; and that the defendant filed a suit in O.S.No.102 of 2003 against the plaintiff with false allegations and obtained a temporary injunction so as to remain in possession of the property without paying any rents and, therefore, the plaintiff got a notice of termination issued terminating the tenancy with effect from 30-6-2003 and then filed the present suit for eviction, for recovery of arrears of rent and for profits. 4. The suit as framed inter alia in the plaint appears to be so simple and is in between the 146 plaintiff and the defendant inter se. There has been no whisper whatsoever about the ownership of the demised premises or any dispute with regard to the demised premises. The defendant/revision petitioner was resisting the suit. It is thus discernible that the plaintiff filed the suit O.S.No.361 of 2003 on the premise that she was the landlord and the defendant was her tenant and the tenant committed default in paying the rents. The defendant/revision petitioner was resisting the suit. It is thus discernible that the plaintiff filed the suit O.S.No.361 of 2003 on the premise that she was the landlord and the defendant was her tenant and the tenant committed default in paying the rents. The defendant, on the other hand, filed a suit against the plaintiff before the selfsame Court seeking the relief of perpetual injunction and both the suits have been coming up for adjudication before the Court below. While the things stood thus, I.A.No.989 of 2005 was filed by the defendant in the suit, as aforesaid, requesting the Court to return the plaint. The plea of the defendant seems to be that the plaintiff although claimed herself to be the landlord of the suit property, the property thus actually belongs to Wakf Board and, therefore, the dispute since arises in between the plaintiff and the defendant in respect of the property which is the property of the Walk Board, the Civil Court has no jurisdiction except the Tribunal constituted under Section 83 of the Wakf Act, 1995 (for short the Act). It is further alleged that the plaintiff herself is a tenant of the demised premises having taken the same on nominal rent, sub-leased the same in favour of the defendant and, therefore, the plaintiff has no title over the suit premises. 5. That application was resisted by the plaintiff by filing her counter. Her plea appears to be that the Madina Complex, Osmanpura, Karimnagar, is a wakf property and the title in respect of the said property is vested in the Wakf Board and the plaintiff never disputed the title of the Wakf Board and that a registered lease deed was executed in favour of the plaintiff in respect of Shop No.15 leasing out the same in her favour for a period of 25 years with effect from 28-10-1984 and the lessee was duly authorized inter alia either to run her own business or to lease out the shop to some other person. Accordingly she let out the premises in favour of the defendant and, therefore, it is not a case of any dispute regarding the wakf property but it is an individual claim by the plaintiff qua the defendant and, therefore, the Civil Court has jurisdiction. 6. Accordingly she let out the premises in favour of the defendant and, therefore, it is not a case of any dispute regarding the wakf property but it is an individual claim by the plaintiff qua the defendant and, therefore, the Civil Court has jurisdiction. 6. Having due regard to the competing claims, the point squarely falls for my determination is as to whether the Civil Court before which the present suit has been filed has jurisdiction? 7. Ad discussed hereinabove, the plaint in the suit O.S.No.361 of 2003 was so drafted mentioning inter alia that the plaintiff was the landlord and the defendant was the tenant seeking the relief of eviction, for recovery of arrears of rent and for profits. There has been no whisper whatsoever about the property having been vested in the Wakf Board or not. The law is now well settled that the plaint gives the forum but not the plea taken by the defendant inter alia in the written statement. Vide Abdulla Bin Ali v. Galappa1. 8. A perusal of the plaint in the instant case reads that it is a simple suit between the landlord and tenant. If that be the position, it cannot be said that the Court before which the suit has been laid has no jurisdiction. Notwithstanding the same, when the defendant filed an application in I.A.No.989 of 2005 requesting the Court to return the plaint on the premise that the plaintiff is not the owner of the demised premises and the property is the property of the Wakf Board, in the counter inter alia filed by the plaintiff it is specifically avarred that the property is the property of the walf property and the plaintiff is the lessee having taken the property on lease from the Wakf L30ard under a registered lease deed and she was specifically authorised inter alia in the lease deed by a covenant that she can in turn lease out the property to a third party or enjoy the property by herself and accordingly she let out the property in favour of the defendant and it was not a case of any dispute as regards the wakf property. 9. The plaint can be returned for presenting the same before the Court before which the suit ought to have been filed. 9. The plaint can be returned for presenting the same before the Court before which the suit ought to have been filed. In other words, the plaint can be returned when that Court has no jurisdiction and the jurisdiction vests with a different Court. Although the instant application came to be filed under Section 85 of the Act, the provision germane in the context for determination is Order 7, Rule 10 of the Code of Civil Procedure. To say that the Civil Court has no jurisdiction, one has to fall back upon the provision of Section 85 of the Act. The provision reads as under: "85. Bar of jurisdiction of civil courts No suit or other legal proceeding shall lie in any civil court in respect of 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." 10. With the avowed object of having a better administration and supervision of the wakfs for the first time the Indian Parliament passed the Wakf Act, 1954. That Act was amended time to time and the Wakf Act, 1995 was the latest one. For the purpose of better administration of wakfs, a survey was sought to be taken up so as to list out the existence of wakfs throughout the length and breadth of the country. For that purpose, the Act envisages the appointment of Survey Commissioner and publication of list of wakfs consisting of Sunni wakfs and Shia wakfs. The Survery Commissioner is expected to conduct a second or subsequent survey after the finalisation of the first survey and the list of wakfs in consequence thereof. In the second survey, he should make an enquiry as regards the wakf property in the State. After such survey, it should be notified in the official gazette that the properties mentioned inter alia therein are the wakf properties. Any dispute in regard to the wakf property by the individual persons claiming the property as theirs and not that of the wakf, the Act envisages the adjudication of the disputes by constituting 14, the Tribunals. After such survey, it should be notified in the official gazette that the properties mentioned inter alia therein are the wakf properties. Any dispute in regard to the wakf property by the individual persons claiming the property as theirs and not that of the wakf, the Act envisages the adjudication of the disputes by constituting 14, the Tribunals. If this object is understood in its proper perspective, the disputes as regards the property of the wakfs or the disputes pertaining to that property in between the Wakf Board and the individuals shall be adjudicated by the Tribunal but not by the Civil Court. In the instant case as per the claims of the parties, the property in question is obviously the wakf property and there has been no gainsaying of the same. The plaintiff now claims that she is the lessee of the Wakf Board under a registered lease deed and that she has been inter alia by means of a covenant authorised under the said lease deed to sublease the property in favour of a third party. She having sub-let the property in favour of the defendant and when the defendant committed default in paying the rents, she is seeking now the eviction of the defendant, for recovery of arrears of rent and for profits and, therefore, there has been no dispute whatsoever as regards the wakf property such a dispute in between the lessee and the sub-lessee falls within the ambit of expression "dispute" and attracts the provisions of Section 85 of the Act or not is the moot question. Section 85 of the Act shall have to be read and understood in conjunction with the avowed object in passing the enactment. In doing so, I am of the considered view that the Act has not envisaged the individual disputes between the parties unconnected with the dispute regarding the property of the wakfs. That the property in the instant case is the wakf property is an undisputed fact to reiterate at the cost of repetition for better understanding of the matter. 11. The learned counsel appearing for the revision petitioner seeks to place reliance upon a Judgment of this Court in Jai Bharat Co-operative Housing Society Ltd. v. A.P. State Wakf Board. That the property in the instant case is the wakf property is an undisputed fact to reiterate at the cost of repetition for better understanding of the matter. 11. The learned counsel appearing for the revision petitioner seeks to place reliance upon a Judgment of this Court in Jai Bharat Co-operative Housing Society Ltd. v. A.P. State Wakf Board. That was a case where the Wakf Board was claiming the property in question as wakf property but the claimant claims it to be its own property. Under such circumstances, it was held by a learned single Judge of this Court that all disputes relating to wakf property have to be decided by the Tribunal constituted under the Act but not by the Civil Court. 12. Yet another Judgment sought to be relied upon by the learned counsel appearing for the revision petitioner is Mahoob Khan v. Mohd. Khaja3. That was again a case where the plaintiff filed a suit for perpetual injunction simpliciter on the premise that the property in question was a graveyard and was originally a part of bigger extent belonging to his paternal grandfather and that his grandfather donated one acre of land towards mosque and some extent of the said land was acquired for location of bus station and the remaining land was reserved for the family burial ground and that the defendant who had no right was trying to encroach upon the land. That suit ended in dismissal before the trial Court. The appellate Court taking into consideration the points, whether the suit property is a wakf property, whether the suit dispute is a dispute covered by Section 85 read with Section 6 of the Act, directed the plaint to be returned. That was sought to be assailed before this Court. A learned single Judge of this Court after having survey of various precedents rendered by the Apex Court, this Court and other High Courts and the provisions of the Act, held that when there is a special forum created for adjudication of the disputes relating to wakf properties entertaining those disputes by the Civil Court despite ouster of jurisdiction under Section 85 of the Act, leads to multiplicity of litigation. Since the Tribunal had taken the view that the suit for injunction ought to have been filed before a Civil Court, it was held to be not a correct approach. Since the Tribunal had taken the view that the suit for injunction ought to have been filed before a Civil Court, it was held to be not a correct approach. The fact remains that the plaintiff claimed that the property is that of his family property having been set apart for the purpose of family burial ground exclusively and the defendant was trying to interfere with the same unnecessarily. It is obvious that there appears to be a dispute pertaining to that property. 13. The learned counsel appearing for the revision petitioner further seeks to rely upon a Division Bench Judgment of this Court in M. Bikshapathi v. Government of Andhra Prades4. That was a case where the claim of the appellant was that when he applied for lease of the property in his favour, it was not considered by the Wakf Board, instead the same was leased out to the respondent No.3 therein. A contention was sought to be raised that inasmuch as there was no dispute in regard to the wakf property, the Civil Court continued to have jurisdiction. In that perspective, it was held that the Wakf Tribunal could determine any question relating to wakf property including grant of lease and its power was not limited to determine the nature of wakf property alone. 14. The above referred Judgments sought to be relied upon by the learned counsel appearing for the revision petitioner are distinguishable. Having regard to the matrix of the instant case, there has been no dispute that the property in question is the wakf property. Obviously, as per the facts emanating from the petition and the counter affidavit unconnected with the facts averred inter alia in the plaint, the plaintiff was the lessee of the wakf property and he was authorised to sub-lease that property in favour of anybody and when she let out the property in favour of the defendant, he committed default in paying the rents and, therefore, the plaintiff filed the suit for recovery of possession, arrears of rent and profits. It has nothing to do with the administration of the wakf property by the Wakf Board. It is purely a litigation in between the plaintiff and the defendant inter se. Having regard to the same, I am of the considered view that it falls out of the purview of Sections 85 arid 83 read with Section 6 of the Act. It has nothing to do with the administration of the wakf property by the Wakf Board. It is purely a litigation in between the plaintiff and the defendant inter se. Having regard to the same, I am of the considered view that it falls out of the purview of Sections 85 arid 83 read with Section 6 of the Act. Such a dispute which is purely personal in between the plaintiff and the defendant and which has nothing to do with the administration of wakf property by the Wakf Board, cannot be taken away from the purview of the Civil Court under the Act. Simply because the subject matter of the suit is the property of the wakf, when the dispute is in between two individuals in respect of their rights although connected with the property of the wakf, it is not a dispute regarding the wakf property as envisaged under the provisions of the Act. 15. Either on the principle that plaint gives the forum but not the written statement, or on the principle as can be seen from the respective pleadings, it is not discernible that there is any dispute with regard to the wakf property. The request of the revision petitioner to return the plaint cannot, therefore, be considered at this stage. The Court is concerned with the plaint in the suit and the counter affidavit filed by the plaintiff in the petition filed by the defendant. No extraneous evidence can at this stage be considered. After the full fledged trial, if the facts clearly disclose otherwise, the Court can take appropriate decision as regards the question as to whether there has been any dispute pertaining to the property of the wakf as well. 16. For the above reasons, the Civil Revision Petition must fail and is dismissed at the threshold. No order as to costs.