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2018 DIGILAW 4452 (MAD)

Riyas Nisha v. Mohamed Akbar

2018-12-06

T.RAVINDRAN

body2018
ORDER : The abovesaid civil revision petitions are directed against the Judgment and Decree dated 28.08.2008, passed in O.S.No.4 of 2006, on the file of the Principal Subordinate Court, Tirunelveli. 2. For the sake of convenience, the parties are referred to as per the rankings in the Trial Court. 3. Suit for recovery of possession, arrears of rent and future damages. 4. The case of the plaintiff in brief is that the suit property belongs to Jamia Mosque and the plaintiff is the President of the abovesaid Mosque and accordingly, the suit property is under the his management. The suit property was taken on lease by the defendant for running a School in the year 2002 by way of the oral lease. The tenancy is calculated according to the English Calender month and the present rent of Rs.1,000/- per month to be paid on or before 5th day of every succeeding English Calender month, however, the defendant has been keeping the rent unpaid from the month of July, 2005 and inasmuch as the suit property is belonging to the religious institution and situated near the Mosque, the same is required for the common purpose of the Jamath and the Jamath has also decided to improve the suit property for the welfare of the Jamath and accordingly, the tenancy of the defendant was terminated by giving a notice on 10.11.2005. The defendant sent a false reply, dated 25.11.2005, containing frivolous reasons and thereby, refused to vacate the suit property and the arrears of rent is from the month of July to November, 2005, amounting to Rs.5,000/- and furthermore, the defendant is also liable to pay the damages for the use and occupation of the suit property at the rate of Rs.1,000/- per month and accordingly, the suit has been laid for the necessary reliefs. 5. 5. The case of the defendant in brief is that the Wakf Tribunal has no jurisdiction to entertain the suit, since the property involved in the suit is not the wakf property and the property originally belonged to Madarasa Mohamathia Kalvi Sangam and Syed Jamalutheen started a School with the lease and licence of the abovesaid Sangam and constructed the School building and accordingly, he got the School recognized in his name as Correspondent and after him, his son also took pains to improve the School and while so, some disgruntled elements filed a suit in O.S.No.496 of 1943, on the file of the District Munsif Court, Tirunelveli, as though the defendant's predecessors wanted to convert the suit property as a private property and the abovesaid suit filed for declaration and possession, the defendant's predecessors never questioned the right of the Sangam and a compromise memo was filed in the abovesaid suit, thereby accepting the right of the Sangam and the Sangam allowed the defendant's predecessor Mohammed Ghouse to be in the possession for a period of five years on monthly rent and consequently, the Sangam had become defunct and the then President made an oral gift of the site bearing the School to the then Correspondent and accordingly, the President also requested the Correspondent to pay some amount to the Jamia Pallivasal as donation and the same was accepted by the defendant's predecessor and thereby, paying the said amount to the Pallivasal, at present, the defendant is paying a sum of Rs.1,000/- to the Pallivasal as donation and the Pallivasal never owned the suit property and not entitled to claim any right over the suit property and there is no relationship of landlord and tenant. The Mosque Authorities have been issuing receipts for the collection of the rent in respect of their building and the abovesaid rent receipts have been utilized for receiving donation from the defendant. Only on the basis of the abovesaid receipts, the plaintiff is now claiming title to the the suit property on the basis of the landlord – tenant relationship. The suit property is not the wakf property. Only on the basis of the abovesaid receipts, the plaintiff is now claiming title to the the suit property on the basis of the landlord – tenant relationship. The suit property is not the wakf property. Jamia Mosque is a notified wakf, however, the suit property is not included in the said wakf and after the demise of the defendant's husband, she is running the School and she is not the tenant under the Jamia Mosque and the suit is, therefore, liable to be dismissed. 6. In support of the plaintiff's case, P.Ws.1 and 2 were examined and Exs.A1 to A24 were marked. On the side of the defendant, D.Ws.1 and 2 were examined and Exs.B1 to B5 were marked. 7. On a consideration of the materials placed by the respective parties, both oral and documentary and the submissions made, the Wakf Tribunal was pleased to decree the suit in favour of the plaintiff in part and thereby, held that the plaintiff is entitled to recover the arrears of rent from July, 2005 till November, 2005 amounting to Rs.5,000/- and thereafter, from December, 2005 to August, 2008, the date of the decree, entitled to receive the rent at the rate of Rs.1,000/- per month and accordingly, the defendant had been directed to deposit the amount abovestated in the Court and the plaintiff had been granted permission to receive the said amount and accordingly, granted permission to the defendant to run the School in the suit property by remitting the rent of Rs.1,000/- to the plaintiff and thereby, declined the relief of recovery of possession prayed for by the plaintiff and accordingly, disposed of the suit. Aggrieved over the Judgment and Decree of the Trial Court, the defendant has preferred C.R.P.(NPD) (MD) No.2375 of 2008. Similarly, aggrieved over the Judgment and Decree of the Court below in refusing the relief of recovery of possession, the plaintiff has preferred C.R.P.(NPD) (MD) No.2506 of 2010. 8. Aggrieved over the Judgment and Decree of the Trial Court, the defendant has preferred C.R.P.(NPD) (MD) No.2375 of 2008. Similarly, aggrieved over the Judgment and Decree of the Court below in refusing the relief of recovery of possession, the plaintiff has preferred C.R.P.(NPD) (MD) No.2506 of 2010. 8. The main plea of the plaintiff is that the suit property belongs to Jamia Pallivasal, of which, the plaintiff is the President and the defendant is occupying the suit property as the tenant under the plaintiff and however, the defendant had failed to pay the rent in respect of the suit property from July, 2005 and accordingly, the plaintiff terminated the tenancy of the defendant by the issuance of the notice, dated 10.11.2005 and furthermore, according to the plaintiff, the suit property is required for the common purpose of the Jamath and accordingly, the plaintiff intended to improve the suit property for the welfare of the Jamath, however, the defendant had refused to vacate the suit property and sent a reply containing false averments on 25.11.2005 and hence, according to the plaintiff, the need for the institution of the suit. 9. 9. The defendant had resisted the plaintiff's suit contending that the suit property is not the wakf property and does not belong to the plaintiff and furthermore, according to the defendant, the suit property belongs to Madarasa Mohamathia Kalvi Sangam and accordingly, the defendant's predecessor started a School in the suit property, furthermore, also stated that in respect of the suit property, O.S.No.496 of 1943 was laid against the defendant's predecessors and in the said suit, a compromise memo was filed and recorded and accordingly, the defendant's predecessor had been allowed to occupy the suit property for running the School for a period of five years on monthly rent, furthermore, it is also stated that then President of Kalvi Sangam abovestated made an oral gift of the suit property in favour of the defendant's predecessor and as per the direction of the then President, the defendant had been paying the donation to the Jamia Pallivasal at the rate of Rs.1,000/- per month and the said amount was not remitted as rent and the plaintiff taking advantage of the rent receipts issued with reference to the same, falsely claiming that the landlord-tenant relationship exists between the parties, had laid the suit on false averments and therefore, according to the defendant, the plaintiff is not entitled to the reliefs prayed for. 10. From the abovesaid pleas putforth by the respective parties, it is evident that though the suit had been laid by the plaintiff for recovery of possession and also for arrears of rent and future damages based on the landlord – tenant relationship, it is found that the defendant has taken the plea that the suit property is not the wakf property and accordingly, does not belong to the Jamia Pallivasal as putforth in the plaint. Originally, the suit has come to be laid only before the District Munsif Court, Tirunelveli. However, the Court suo motu transferred the suit to the Wakf Tribunal for disposal. Accordingly, the Wakf Tribunal had proceeded to dispose of the suit based on the materials placed on record by the respective parties. 11. Originally, the suit has come to be laid only before the District Munsif Court, Tirunelveli. However, the Court suo motu transferred the suit to the Wakf Tribunal for disposal. Accordingly, the Wakf Tribunal had proceeded to dispose of the suit based on the materials placed on record by the respective parties. 11. The plea has been taken by the defendant that the suit laid by the plaintiff is not maintainable before the Wakf Tribunal and according to her, the suit having been laid for recovery of the possession of the suit property on the basis of the landlord – tenant relationship, in such view of the matter, the suit for eviction filed before the Wakf Tribunal is not maintainable and only the Civil Court will have the jurisdiction and therefore, it is contended that the Wakf Tribunal is not entitled to dispose of the suit and hence, according to the defendant, the determination of the suit by the Wakf Tribunal, without having jurisdiction, is liable to be set aside and in this connection, placed reliance upon the decisions in Ramesh Gobindram (dead) through Lrs. vs. Sugra Humayun Mirza Wakf, reported in 2010 (4) TLNJ 1 (Civil); S. Shivashankar and another vs. Sivabakkiam Muthusamy Trust, reported in 2011 (2) CTC 72 , Faseela M. vs. Munnerul Islam Madrasa Committee and another, reported in 2014 4 L.W. 632 and the unreported decision of the Andhra High Court in Sarwarkhanam and others vs. Macca Madina Allauddin Wakf, C.R.P. No. 5993 of 2016, dated 11.08.2017. 12. In this connection, according to the defendant, at the time when the suit had been laid as per Section 83 of the Wakf Act, 1995 (hereinafter, referred to as “the Act”) in respect of the eviction of the tenant, the Wakf Tribunal was not having the jurisdiction and accordingly, it is the argument of the defendant's counsel that the suit should have been instituted only before the Civil Court for seeking the reliefs prayed for. It is also pointed out that after the amendment of Section 83 of the Act, by virtue of the Wakf Amendment Act, 2013, only by way of the same, the Wakf Tribunal had been conferred with the jurisdiction to decide the suit as regards the eviction of the tenant also and according to him, the abovesaid Amendment Act having come into force with effect from 01.11.2013 and would be having prospective operation, therefore, according to him, the plaintiff cannot be allowed to rely upon the amended Section 83 of the Act and therefore, the suit laid by the plaintiff before the Wakf Tribunal is not maintainable. 13. As above noted, originally the suit had been laid by the plaintiff only before the Civil Court, however, the suit had been suo motu transferred by the Civil Court to the Wakf Tribunal for adjudication and thereby, the Wakf Tribunal had taken the cognizance of the suit and proceeded to dispose of the same. 13. As above noted, originally the suit had been laid by the plaintiff only before the Civil Court, however, the suit had been suo motu transferred by the Civil Court to the Wakf Tribunal for adjudication and thereby, the Wakf Tribunal had taken the cognizance of the suit and proceeded to dispose of the same. As to the contention of the defendant's counsel as regards the jurisdiction of the Wakf Tribunal to entertain the suit, it has to be noted that considering the pleas putforth by the defendant in the written statement, particularly, disputing the title of the plaintiff to the suit property and thereby contending that the suit property is not the wakf property and that the same belongs to the defendant by virtue of the oral gift made by the Kalvi Sangam, in the light of the said defence placed, accordingly, it is noted that the plaintiff's suit would be maintainable before the Wakf Tribunal as per Section 83 of the Act, before the Wakf Amendment Act, 2013 and as per the provision of Section 83 of the Act before the amendment, when it is seen that the Wakf Tribunal is empowered to determine the lis concerning any dispute, question or other matters relating to a wakf or wakf property under the Act, in such view of the matter, it is found that the Wakf Tribunal is entitled to determine the issues involved between the parties in the suit and the abovesaid position of law could be gathered from the decision of this Court in K.G. Jilendran vs. Mohideen Andavar Dharga and Pallivasal & others, reported in 2017 5 L.W. 34 and the same had been determined taking into account the decisions of the Apex Court as noted below: “Wakf act (1995), Sections 6, 7, 83, 84, 85 Wakf amendment act (2013), Section 83 Property whether wakf property or not – Wakf tribunal's jurisdiction to decide Lis – scope. Wakf Tribunal has jurisdiction to entertain issues with reference to eviction of tenant or determination of rights and obligations of lessor and lessee – Wakf Tribunal consisting of a single member is authorised to hear all disputes as contemplated under section 83(1) – petitioners' mosque have title to the property, duly determined tenancy of first respondent, laid suit for recovery of possession – First respondent is liable to pay damages for use and occupation. A perusal of section 85 would go to show that no suit or other legal proceedings shall lie in any Civil Court, Revenue Court and any other Authority in respect of any dispute, question or other matter relating to any waqf property. Therefore, when the main issue involved in this lis is as to whether the property in dispute is the waqf property and belonged to the petitioners' Mosque or not and when the same has been raised by the first respondent, it is found prima facie that as rightly put forth by the learned counsel for the petitioners' Mosque, the Civil Court may not have jurisdiction to entertain the lis as such. That apart, it is found that though the present suit has been originally instituted in the Civil Court, after the advent of the Act, it is found that the suit had been transferred to the Wakf Tribunal and re-numbered and thereby, the Wakf Tribunal took up the matter and determined the issues involved in this lis. The Act as it stood before the amendments were brought into the Act by virtue of the Wakf Amendment Act, 2013, on a harmonious reading of the Sections 6, 7, 83 and 84 of the Act, it could be seen that considering the issues raised in the matter, particularly, as to whether the property in dispute is a waqf property or not, it is found that the Wakf Tribunal has the jurisdiction to entertain the lis. That apart, in the light of the amendments brought into the Act, with effect from 01.11.2013, particularly, to the Section 83 of the Act, it is found that the Wakf Tribunal has the jurisdiction to entertain the issues involved in the matter even with reference to the eviction of the tenant or the determination of the rights and obligations of the lessor and lessee of the property in dispute under the Act. Therefore, it is seen that inasmuch as the lis has not come to a finality and it is at the stage of the revision before this Court and meanwhile the Act having been amended and when it is found that the tenancy issue could also be sorted out by the Wakf Tribunal as per the amendment introduced in the Act, it is seen that the Wakf Tribunal has jurisdiction to entertain the lis. It is, therefore, found, the present Wakf Tribunal consisting of a single member is authorised to hear all disputes as contemplated under Section 83(1) of the Act. The first respondent claiming only the tenancy right and when it is found that the petitioners' Mosque have title to the property and the first respondent also had not evinced any interest to pay the rent to the petitioners' Mosque since the date of purchase by the petitioners' Mosque, it is found that the petitioners' Mosque had duly and validly determined the tenancy of the first respondent and accordingly, laid the suit for recovery of possession. In the light of the above factors, I hold that the property involved in the lis belonged to the petitioners' Mosque and I further hold that the petitioners' Mosque is entitled to recover the possession of the property from the first respondent and also entitled to claim the monthly rent at the rate of Rs.550/- from the date of purchase till the end of December, 1990 and accordingly, Point Nos.I to III are answered in favour of the petitioners' Mosque. Accordingly, I hold that the first respondent is liable to pay the damages for the use and occupation of the property at the rate of Rs.550/- per month as determined by the Tribunal from January, 1991 till the delivery of the possession to the petitioners' Mosque and the said finding of the Wakf Tribunal is perfectly correct. Accordingly, Point Nos.IV and V are answered. In view of the above discussions, the fair and decreetal orders, dated 09.09.2005, passed in W.O.P.No.12 of 2000, on the file of the Principal Subordinate Court, Madurai, are confirmed and resultantly, the civil revision petitions are dismissed with costs. (2010) 6 MLJ 526 (SC) [Ramesh Gobindram (dead) through Lrs. vs. Sugra Humayun Mirza Wakf]; 2013 5 L.W. 295 [Bhanwar Lal & another vs. Rajasthan Board of Muslim Wakf and others]; 2016 1 L.W. 896 : AIR 2016 SC 381 [Lal Shah Baba Dargah Trust vs. Magnum Developers]; 2005 1 L.W. 676 [I. Salam Khan vs. The Tamil Nadu Wakf Board rep. by its Chairman and others]; and 2006 4 L.W. 744 : (2006) 4 MLJ 1800 [V.S.B. Sikkandar vs. K.M. Khader Gani and another]” 14. by its Chairman and others]; and 2006 4 L.W. 744 : (2006) 4 MLJ 1800 [V.S.B. Sikkandar vs. K.M. Khader Gani and another]” 14. In the light of the abovesaid position of law, considering the plea of the defendant putting forth that the suit property is not the wakf property and also claiming title upon herself, it is seen that the main issue involved in the lis is as to whether the suit property is the wakf property and belonging the Jamia Mosque or whether the same belongs to the defendant, thus, prima facie, it is seen that considering the unamended provision of Section 83 of the Act, the Civil Court may not have the jurisdiction to entertain the lis as such and accordingly, on a harmonious reading of Sections 6, 7, 83 and 84 of the Act, it could be seen that the Wakf Tribunal has the jurisdiction to entertain the lis. Therefore, the point of jurisdiction raised by the defendant for rejecting the plaintiff's suit does not merit acceptance and accordingly, the same is discountenanced. 15. As regards the merits of the case as determined by the Wakf Tribunal, in fact, the counsel for the defendant did not place any submissions with reference to the same and on the basis of the materials placed on record, it is found that the civil proceeding had been earlier pending between the Pallivasal Committee and the defendant's predecessor Mohammed Ghouse Hussain in O.S.No.496 of 1943, on the file of the District Munsif Court, Tirunelveli and in this connection, the resolution passed by the Pallivasal Committee could be gathered from the document marked as Ex.A10 and further, as could be seen from the compromise decree effected in the abovesaid suit marked as Ex.B1, the suit property had been agreed to be let out to Mohammed Ghouse Hussain for running the School and accordingly, the parties had also agreed that Mohammed Ghouse Hussain should not commit default in the payment of rent continuously for more than three months, failing which, he would be liable to be evicted and accordingly, based on the abovesaid compromise decree effected in the abovesaid suit, it is seen that thereafter, Mohammed Ghouse Hussain and after him, his son Syed Mohammed Hussain i.e., the defendant's husband and after his demise, the defendant had been running the School in the suit property as the Correspondents thereof. Therefore, when as could be seen from the materials abovestated, the defendant having admitted that the suit property belonged to the Pallivasal Committee and also agreed to enjoy the same as the tenant by paying the monthly rent, the defendant cannot be allowed to putforth the contentions that the suit property does not belong to Jamia Mosque and the same belongs to the defendant and thereby, there is no landlord-tenant relationship between the parties, as such, the same are found to be correctly rejected by the Wakf Tribunal. 16. In addition to that, as regards the claim of the defendant that the suit property is not the wakf property, the witness examined on behalf of the defendant as D.W.1 having admitted about the compromise decree passed in O.S.No.496 of 1943 as found in Ex.B1 and furthermore, admitting that the abovesaid suit had come to be laid against the defendant's predecessors based on the resolution of the Pallivasal Committee marked as Ex.A10 and in addition to that, the defendant having clearly admitted that the Jamia Mosque is a notified wakf, the Wakf Tribunal based on the abovesaid materials placed on record, rightly held that the suit property belongs to the Jamia Mosque, as contended by the plaintiff. That apart, from the letter sent by the defendant's husband to the plaintiff's Mosque marked as Ex.A12, when he has clearly requested that the rent receipts should be issued in his name and furthermore, as could be seen from the certificate issued by the Wakf Inspector, Tirunelveli, marked as Ex.A4, in all, it is seen that as rightly determined by the Wakf Tribunal, the suit property is only the wakf property and not the property belonging to the Kalvi Sangam as putforth by the defendant. 17. 17. The argument putforth by the defendant's counsel that the suit property had been orally gifted to the defendant has been rightly rejected by the Wakf Tribunal and in this connection, when with reference to the abovesaid case of the defendant, as rightly determined by the Wakf Tribunal, when the entitlement of the President of the Kalvi Sangam to make the oral gift has not been established by the defendant and furthermore, the oral gift having also not been established and handing over of the possession of the suit property has also not been established and accordingly, it is found that the Wakf Tribunal has rightly rejected the plea of oral gift putforth by the defendant for claiming the title to the suit property. 18. The main argument putforth by the defendant is that there is no landlord – tenant relationship between the plaintiff and the defendant as regards the suit property. However, as found by the Wakf Tribunal based on the compromise decree passed in O.S.No.496 of 1943 marked as Ex.B1, when the defendant's predecessor had admitted to be inducted as the tenant in respect of the suit property under the plaintiff's Mosque agreeing to pay the rent for running the School therein and furthermore, coupled with the documents of the rent receipts issued by the plaintiff – Mosque in favour of the defendant's predecessor as well as the defendant marked as Exs.A5 and A6 and furthermore, when from the documents marked on the side of the plaintiff as Exs.A19 to A24, the account returns, all would go to expose that the defendant having admitted the plaintiff – Mosque as the landlord of the suit property and accordingly, admitted to be the tenant under the plaintiff – Mosque and had also admitted that the suit property had been taken only on lease from the plaintiff and in such view of the matter, the abovesaid materials clearly pointing out the landlord – tenant relationship between the parties, it is seen that no interference is called for in the abovesaid determination of the Wakf Tribunal. 19. 19. The Wakf Tribunal is found to have declined the relief of possession sought for by the plaintiff on the footing that inasmuch as the defendant is running the School in the suit property by admitting as nearly as 500 students and about 14 Teachers are working in the Institution, accordingly, holding that the eviction of the defendant from the suit property would not be in the welfare of the School studying children and on that basis, found to have declined the relief of possession as prayed for by the plaintiff. However, as rightly contended by the plaintiff's counsel, when the defendant's predecessor had admitted the title of the plaintiff – Mosque in respect of the suit property, by way of Ex.B1 and also in other correspondences and the defendant having failed to establish the plea of title putforth by her by way of oral gift and also without any basis had the audacity to deny the title of the plaintiff and furthermore, when the defendant is found to have failed to pay the rent commencing from July, 2005 till November, 2005, when as per the compromise decree entered into between the parties marked as Ex.B1, the defendant is not liable to keep the arrears of rent for more than three months and on that ground alone, she would be liable to be evicted from the suit property and when there is no plausible material for not paying the rent for nearly five months and also continuously not paying for the successive months and to cap it all when the defendant is found to have disputed the title of the plaintiff in respect of the suit property without any authority and in such view of the matter, the defendant becomes liable to be evicted from the suit property based on the terms of the compromise decree marked as Ex.B1. That apart, when according to the plaintiff, the suit property is required for developing the Jamath for the purpose of running Madharsa and conducting Arabic Classes, the Wakf Tribunal had failed to consider the abovesaid requirement of the plaintiff's Mosque for vacating the defendant from the suit property and in such view of the matter, in my considered opinion, the reasonings adduced by the Wakf Tribunal, despite the defendant having failed to pay the rent continuously and keeping the arrears of rent not paid for more than five months and also thereafter, continued not to pay the rent for the successive months and in addition to that, having chosen to deny the title of the plaintiff without any basis and considering the bona fide requirement of the plaintiff of the suit property for the development of the Jamath, for the declinment of the relief of recovery of possession sought for by the plaintiff – Mosque is found to be unjustified and without any basis and not in accordance with law. 20. In the light of the above discussions, the Judgment and Decree of the Wakf Tribunal, dated 28.08.2008, passed in O.S.No.4 of 2006, are modified and accordingly, held that the plaintiff is entitled to recover the possession of the suit property from the defendant and that the defendant is ordered to pay the rent to the plaintiff at the rate of Rs.1,000/- per month from July, 2005 till November, 2005 and thereafter, to pay the sum at the rate of Rs.1,000/- per month as damages till the handing over of the possession of the suit property to the plaintiff and the defendant is accordingly directed to handover the possession of the suit property to the plaintiff on or before 31.05.2019. 21. Accordingly, C.R.P.(NPD) (MD) No.2375 of 2008 is dismissed with costs and C.R.P.(NPD) (MD) No.2506 of 2010 is allowed with costs. Consequently, connected miscellaneous petition is closed.