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2016 DIGILAW 1959 (ALL)

Yusuf v. District Judge, Meerut

2016-05-19

SUNITA AGARWAL

body2016
JUDGMENT Mrs. Sunita Agarwal, J. – Heard learned counsel for the petitioner and perused the record. 2. This writ petition under Article 226 of the Constitution of India has been filed to challenge the decree of eviction passed by the Civil Court namely Judge Small Causes Court in a suit for eviction and recovery of arrears of rent. 3. The defendant objected to the maintainability of the suit on the ground that the plaintiff is not the owner of the suit property rather it belongs to a Waqf. There was no landlord-tenant relationship between them. 4. On the question of notice, he had denied the service. The suit was filed after sending a notice dated 20.5.2006 which was returned on 31.5.2006 with the endorsement "avoided". The notice upon the defendant No.2 was served. Despite the said notice, rent was not paid to the landlord and, therefore, the eviction suit was filed. The rent from 11.12.2003 till 30.6.2006 was found in arrears on the date of notice. On the issue of landlord-tenant relationship, it was recorded by both the Courts below that in the Municipal Assessment Record, the suit property was recorded in the name of the original owner. There is no entry of Waqf. The plaintiff have derived title on the basis of a sale deed dated 2.9.1998. The defendant cannot question the title of the landlord. 5. On the question of notice, it was found that the notice by refusal was served upon defendant No.1 whereas the defendant No.2 had received this notice. 6. No evidence was brought on record by the tenant to state that he has paid rent to the landlord, it was, therefore, recorded that the petitioner was in default. 7. The Revisional Court had recorded that the defendant (DW-1) though in his examination-in-chief stated that the suit property was Waqf Property and his father was tenant of the Waqf property, however, in cross-examination, he admitted that he never saw the entry of Waqf in the municipal record. There are receipts of rent given to the Waqf but that can not be looked into to record the creation of Waqf or ownership of Waqf regarding this property. 8. There are receipts of rent given to the Waqf but that can not be looked into to record the creation of Waqf or ownership of Waqf regarding this property. 8. All these entries have been considered by the Court below to arrive at a finding of fact that the plaintiff was the landlord of the suit property and the defendants have committed default and, therefore, are liable to be evicted. 9. Challenging these findings, the submission of learned counsel for the petitioner is that the Judge Small Causes Court had no jurisdiction to decide the question as to whether the suit property is Waqf property. 10. The said submission is misconceived inasmuch as the prima facie examination of title is permitted through adjudication on intricate question is not permissible. 11. In the instant case, there was no material on record to show that the suit property was Waqf property and as such, the Small Causes Court had rightly proceeded. 12. No ground for interference is made out. 13. Above all, in view of the Apex Court judgment in the case Radhey Shyam and another v. Chhabi Nath and others, (2015) 5 S.C.C 423 : 2015 (1) ARC 657, the writ petition under Article 226 challenging the orders of Civil Court is not maintainable. 14. Lastly, learned counsel for the petitioner requested that some reasonable time may be provided to the tenant to shift his belongings elsewhere. 15. To this submission, no objection was taken by the learned counsel for the respondent. 16. The present writ petition is dismissed with the following directions: - "(1) The petitioner shall file an undertaking within a period of four weeks before the Court below that he shall vacate the house in question on or before 1.12.2016 and hand over peaceful possession to the landlord. (2) Till the date of vacation, the petitioner shall pay the rent regularly to the landlord." 17. In case of default of any of the above conditions, the release order shall become executable forthwith.