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2015 DIGILAW 1799 (RAJ)

Basanti Devi v. Masjid Panch Visaytiyan

2015-10-16

PRAKASH GUPTA

body2015
JUDGMENT : 1. This second appeal has been filed by the respondents-defendants against the judgment and decree dated 7/02/1996 passed by Additional District Judge, Karauli (hereinafter referred to as 'the learned appellate Court') in civil appeal No. 65/92 whereby, the learned appellate Court has confirmed the Judgment and decree dated 15/07/1991 passed by the Munsif and Judicial Magistrate, Karauli (hereinafter referred to as 'the learned trial Court') in civil suit No. 175/80. 2. The brief facts giving rise to this appeal are that the plaintiff-respondent filed a suit against the husband of appellant No.1 and father of appellants No.2 to 7, who was the tenant of the respondents. In the suit it is stated that the disputed property is a Waqf property belonging to Maszid Panch Visaytiyan situated outside Hindaun Gate in town Karauli. The original defendant was tenant @ 15 per month in the disputed shop and tenancy was monthly. It is alleged that the original defendant has sub-let the disputed shop to performa respondent. The defendant has not paid rent from April, 1980, therefore, he is a defaulter. The respondent has determined the tenancy of the original defendant since 31/07/1980 through registered notice dated 23/06/1980. Therefore, since 01/08/1980, the possession of the appellants is un-authorised. 3. The defendant resisted the suit by filing the written statement wherein, he denied the allegations with regard to default in payment of rent or subletting. On the basis of the pleadings of the parties, learned trial court framed the following three issues:- “1. Whether, defendant No.1 without the permission of the plaintiff has sub-let the disputed shop to defendant No.2 ? 2. Whether, defendant No.1 is defaulter? 3. Relief” 4. After recording evidence of the parties and hearing both the parties, the learned trial Court decided both the issues in favour of the plaintiff and by its judgment dated 15.7.21991 decreed the suit and passed a decree of eviction. Against the judgment and decree of the learned trial court, the defendant No.1-appellant has filed first appeal before the lower appellate court. 5. Against the judgment and decree of the learned trial court, the defendant No.1-appellant has filed first appeal before the lower appellate court. 5. The lower appellate court by its judgment dated 7.2.1996 reversed the finding of the learned trial court on issue No.1, which was regarding sub-letting, observing that the plaintiff respondent failed to prove the fact of sub-letting as there is neither any pleading as to how and in what manner the shop in question was sublet to defendant respondent No.2 nor any evidence was produced to this effect. However, the learned lower appellate court considering the averments made by defendant No.1 appellants in the wrritten statement, especially in paragraph No.4, regarding tendering rent amount through money order on 1.8.1980 and refusal thereof by the plaintiff to accept the same; sending of notice dated 21.8.1980 and filing of application in the Court under Section 19 A of the Rajasthan Premises (Control of Rent and Eviction Act, 1950 and later on depositing the same in the Court, held that since the defendant failed to prove either the money order or the notice, by producing the same in the evidence. The court further held that deposit of rent in the court also, does not help the defendant. Recording the above finding, the learned lower appellate court by the impugned judgment and decree dated 7th February, 1996 dismissed the appeal. Hence, this appeal. 6. Heard learned counsel for the parties and perused the material on record minutely and carefully. 7. It is submitted by the learned senior counsel for the appellants that the appellate Court utterly failed to consider the fact that the decree passed by the trial Courts is a nullity. He submitted that the trial Court has no jurisdiction to hear the suit because indisputably, the property in dispute is a Waqf property. Therefore either the Waqf tribunal or the Court of authorized officer under the Rajasthan Public Premises (Eviction of Un-authorised Occupants) Act, 1964 (for short 'the Act of 1965) has the jurisdiction to hear the suit and not the Civil Court. The decree passed by the Courts below is nullity because the same is based on inherent lack of jurisdiction. 8. Therefore either the Waqf tribunal or the Court of authorized officer under the Rajasthan Public Premises (Eviction of Un-authorised Occupants) Act, 1964 (for short 'the Act of 1965) has the jurisdiction to hear the suit and not the Civil Court. The decree passed by the Courts below is nullity because the same is based on inherent lack of jurisdiction. 8. On the other hand, it is submitted by the learned counsel for the respondent that the Waqf Tribunal has no jurisdiction to hear the suit for eviction and no objection whatsoever had been raised by the defendant either in the learned trial Court or in the learned appellate Court. For the first time, in the second appeal, the defendant has no right to take the objection regarding jurisdiction. Both the learned Courts below have rightly decreed the suit filed by the plaintiff. No substantial question of law is involved in the present second appeal. In support of his contentions, he placed reliance on a judgment of the Apex Court in Faseela M.Vs. Munnerul Islam Madrasa Committee and another (AIR 2014 SC 2064). 9. I have considered the rival submissions of the learned counsel for the parties. 10. This second appeal was admitted on 16/09/1996 on the following substantial questions of law:- “i) Whether a decree for eviction under the provisions of Transfer of Property Act could be passed without being framed any issue and proved on trial of about the termination of the tenancy by a legal notice by the plaintiff? ii) Whether the civil Court had no jurisdiction to entertain, try the suit and to pass decree in view of specific bar contained U/S 10A of Rajasthan Public Premises Eviction of unauthorised Occupants Act, 1964? iii) Whether the Civil Court had no jurisdiction to entertain the suit and to decide the dispute regarding the Waqf property in view of Section 55C of the Waqf Act, 1954? 11. So far as substantial question of law No.(i) is concerned, it was specifically stated in the plaint that monthly tenancy of defendant has been terminated after 31/07/80 by registered notice dated 23/06/80. It was also stated in the plaint that from 01/08/80 onwards possession of the defendant is without any right. But the aforementioned facts have not been specifically denied by the defendant in his written statement. It was also stated in the plaint that from 01/08/80 onwards possession of the defendant is without any right. But the aforementioned facts have not been specifically denied by the defendant in his written statement. Additionally, the plaintiff led evidence on the issue of notice served upon the defendant under Section 106 of Transfer of Property Act. During trial, whereon the defendant neither took any objection not did he disputed the legality of the notice or the fact that the notice was served upon him. In view of the aforesaid facts, in my considered opinion no issue is required to be framed on the said point. 12. The learned senior counsel for the appellants Sh. J.P. Goyal fairly conceded that if evidence is available on record on this point and both the parties have led the evidence and the learned courts below have recorded a finding in this regard without framing an issue on the point of legal notice, finding can be given on the said point. In view of the aforesaid substantial question No. (1) is answered accordingly. 13. So far as question No. (iii) is concerned, in the case of Fasella M (supra) the Apex Court has clearly held that suit for eviction relating to a wakf property is triable only by the civil Court. In the said case the Hon'ble Supreme Court has observed as under:- “32. There is, in our view, nothing in Section 83 to suggest that it pushes the exclusion of the jurisdiction of the civil courts extends (sic) beyond what has been provided for in Section 6(5), Section 7 and Section 85 of the Act. It simply empowers the Government to constitute a Tribunal or Tribunals for determination of any dispute, question of other matter relating to a wakf or wakf property which does not ipso facto mean that the jurisdiction of the civil courts stands completely excluded by reasons of such establishment. 33. It is noteworthy that the expression "for the determination of any dispute, question or other matter relating to a wakf or wakf property" appearing in Section 83(1) also appears in Section 85 of the Act. Section 85 does not, however, exclude the jurisdiction of the civil courts in respect of any or every question or disputes only because the same relates to a wakf or a wakf property. Section 85 does not, however, exclude the jurisdiction of the civil courts in respect of any or every question or disputes only because the same relates to a wakf or a wakf property. Section 85 in terms provides that the jurisdiction of the civil court shall stand excluded in relation to only such matters as are required by or under this Act to be determined by the Tribunal. 34. The crucial question that shall have to be answered in every case where a plea regarding exclusion of the jurisdiction of the civil court is raised is whether the Tribunal is under the Act or the Rules required to deal with the matter sought to be brought before a civil court. If it is not, the jurisdiction of the civil court is not excluded. But if the Tribunal is required to decide the matter the jurisdiction of the Civil Court would stand excluded.” 17. The matter before us is wholly and squarely covered by Ramesh Gobindram. The suit for eviction against the tenant relating to a waqf property is exclusive triable by the civil court as such suit is not covered by the disputes specified in Sections 6 and 7 of the Act. In view of the above, substantial question No. (iii) is decided against the appellant. 14. So far as question No. (ii) is concerned, no such objection was ever raised by the appellant either before the learned trial Court or before the learned appellate Court that the Civil Court had no jurisdiction to entertain the suit and to decide the dispute regarding the Waqf property in view of Section 10-A of the Act of 1964. This question has been raised for the first time in the appeal. It is well settled law that the issue regarding jurisdiction of the Court and competence of the Court to hear the matter can be raised at any stage of the proceedings. 15. Indisputably, the tenancy of defendant was determined by notice Ex.-2 and thereafter his possession became unauthorized and he is unauthorized occupant of the suit shop. 16. It is well settled law that the issue regarding jurisdiction of the Court and competence of the Court to hear the matter can be raised at any stage of the proceedings. 15. Indisputably, the tenancy of defendant was determined by notice Ex.-2 and thereafter his possession became unauthorized and he is unauthorized occupant of the suit shop. 16. Unauthorized occupation defined in the Act of 1964 as follows:- “(e) Unauthorised Occupation – In relation to any public premises means the occupation by any person of the public premises without authority for such occupation, and includes the continuance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever.” 17. Further, it would be beneficial to reproduce Section 2(b) of the Act. “2(b) “Public Premises” means any premises belonging to, or taken on leases or requisitioned by or on behalf of State Government [and industrial areas developed by Rajasthan Industrial Mineral Department Corporation and other immovable properties constructed in such areas) and includes any premises belonging to the Rajasthan Public Premises (Eviction of Un-authorised Occupants) Act, 1964 (i)... (vii). (vii) a Waqf as defined in the Waqfs Act, 1954 (Central Act 29 of 1954) and entered in the register of Waqfs maintain under Section 26 of the Act.” 18. It is not in dispute that the shop in question is a Waqf property. In this regard, further it would be beneficial to reproduce Section 10A of Rajasthan Public Premises (Eviction of Un-authorised Occupants) Act, 1964:- “10A. Bar of jurisdiction. - No Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of eviction of any person who is in unauthorised occupation of any public premises or the recovery of the arrears of the rent payable under sub-section (1) of section 7 or the damages payable under sub-section (2) of that section or costs awarded to the State Government under sub-section (5) of section 9 or any portion of such rent, damages of costs.” 19. From the above provision, it is clear that the jurisdiction of civil Court to entertain any suit or proceeding for evicting an unauthorized occupant from any public premises is specifically barred. From the above provision, it is clear that the jurisdiction of civil Court to entertain any suit or proceeding for evicting an unauthorized occupant from any public premises is specifically barred. In my considered view, the learned trial Court was not competent to entertain the present suit as the issue involved in this case was about the eviction of unauthorized occupant from public premises. In my considered view, the learned trial Court lacked the inherent jurisdiction to try the suit and therefore, it exceeded its jurisdiction in passing the decree of eviction. Since, it is a case of inherent lack of jurisdiction, an objection can be raised at the stage of the proceeding including the stage of second appeal. This being purely a question of law, the non raising of this objection during trial or at the stage of first appellate Court is immaterial. The upshot of the above discussion is that the plaintiff may, if so advised persue his remedy under the Act of 1964. 20. In the case of Faseela M. (supra), the controversy was not regarding the eviction of unauthorized occupant and the interpretation of Section 10-A of the Act of 1964 was not involved therein. However, the crucial question to be answered in the present case revolves around the interpretation of Section 10-A o the Act of 1964. 21. In view of the provisions of Section 10A of the Act for the Waqf property, Civil Courts jurisdiction is specifically barred. Substantial question No.2 is answered accordingly. In view of the above discussion, the decree passed by the Courts below is without jurisdiction and liable to be set aside. In the result the appeal succeeds and accordingly allowed. Consequently, decree passed by the appellate Court dated 07/02/1996 and decree passed by the trial Court dated 15/07/1991 are set aside and suit filed by the plaintiff is dismissed.