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2024 DIGILAW 1248 (ALL)

Kammo Since Deceased v. Shahmim Ahmad

2024-05-09

SARAL SRIVASTAVA

body2024
JUDGMENT : (Saral Srivastava, J.) : 1. Heard Sri Ajay Kumar Sharma, learned counsel for the appellants and Sri Utpal Chatterji, learned counsel for the respondents. 2. The present appeal has been preferred by the defendants/appellants challenging the judgement and decree dated 03.02.2024 passed by the First Appellate Court i.e. Additional District Judge, Court No.20 Meerut in Civil Appeal No.163 of 2011 whereby he has allowed the civil appeal preferred by the plaintiffs/respondents. 3. The brief facts of the case are that plaintiff no.1 is the waqf in the name of Waqful Aulad Kayam Karda of which plaintiff no.2-Shamim Ahmad is the Mutawalli. As per the plaint case, defendants/appellants (hereinafter referred to as "defendants") are the tenants of a land of about 100 yards described at the foot of the plaint. The rent of the land was Rs.5 per month and the registered rent deed dated 18.05.1972 was executed between the plaintiff and defendant no.1 through Mutawalli Suleman (as he then was), who was the elder brother of plaintiff no.2. 4. It is further pleaded that defendant no.1 stopped paying the rent Since July 2002, and he sublet the suit property to Naseem (defendant no.4), Saleem (defendant no.3) and Anees (defendant no.2) without the consent of plaintiff, and subletting of the suit property by defendant no.1 to defendant nos.2 to 4 violated terms and conditions of the rent deed dated 18.05.1972. 5. The plaintiff gave a registered notice dated 25.08.2008 under Section 106 of the Transfer of Property Act to the defendants through the registered post which was served upon them. Another notice dated 25.08.2008 was separately given to defendant nos.2 to 4 asking them to vacate the suit property. The aforesaid notice was replied to by the defendants by stating false and incorrect facts in their reply. 6. In the aforesaid backdrop, the plaintiff prayed for the following relief:- 7. The suit was contested by the defendants denying the averments of the plaint contending inter-alia that they have attempted to pay rent by sending the rent to plaintiff, but the plaintiff refused to accept it. It is also pleaded that there is no breach of the terms and conditions of the rent deed. Accordingly, the defendants pleaded that the suit was based on incorrect facts and deserved to be dismissed. 8. The Trial Court framed as many as eight issues. It is also pleaded that there is no breach of the terms and conditions of the rent deed. Accordingly, the defendants pleaded that the suit was based on incorrect facts and deserved to be dismissed. 8. The Trial Court framed as many as eight issues. Issue no.1 on which the finding has been assailed by the appellant is relevant and is reproduced below: 9. The Trial Court considered the waqf deed and after analysing the stipulations in the waqf deed, it concluded that according to the waqf deed, the male lenient descendant shall be appointed as Mutawalli. It found that the waqf was created by Dr. Gulam Haidar and after the death of Dr. Gulam Haidar, his eldest son Suleman, the next male lenient descendant was appointed as Mutawalli. The Trial Court further recorded a finding that plaintiff no. 2-Shamim Ahmad was the youngest brother among the three sons of Dr Gulam Haidar namely, Suleman, Usman and Shamim Ahmad, and Usman was next in line being younger to Suleman and elder to plaintiff no.2-Shamim Ahmad after the death of Suleman should have been appointed as Mutawalli, therefore, plaintiff no.2 could not have been appointed as Mutawalli. Thus, plaintiff no.2 as Mutawalli of plaintiff no.1 was not competent to institute the suit for eviction. Consequently, the Trial Court dismissed the suit. 10. The plaintiff/respondent being aggrieved by the order of the Trial Court preferred civil appeal before the First Appellate Court which was allowed by the First Appellate Court and the suit of the plaintiff was decreed. 11. The First Appellate Court held that the finding of the Trial Court that plaintiff no.2 could not have been appointed as Mutawalli as after the death of Suleman, Usman being younger to Suleman and elder to plaintiff no.2 should have been appointed as Mutawalli is erroneous and illegal. 12. In recording the aforesaid finding, the First Appellate Court noticed that Usman was present during the recording of the testimony of plaintiff no.2-Shamim Ahmad, and he did not raise any objection to the appointment of plaintiff no.2 as Mutawalli. 13. 12. In recording the aforesaid finding, the First Appellate Court noticed that Usman was present during the recording of the testimony of plaintiff no.2-Shamim Ahmad, and he did not raise any objection to the appointment of plaintiff no.2 as Mutawalli. 13. The First Appellate Court after considering and appreciating in detail the testimony of plaintiff no.2 and considering the fact that Usman was present at the time of recording the testimony of plaintiff no.2 and he did not raise any objection about the appointment of plaintiff no.2 as Mutawalli of the waqf held that the Trial Court erred in law and committed manifest illegality in holding that plaintiff no.2 could not have been appointed as Mutawalli, and he was not competent to institute the suit. The First Appellate Court also considered the other issue and found substance in the submission of the plaintiff and consequently, it allowed the appeal and decreed the suit. 14. Challenging the judgement and decree passed by the First Appellate Court, learned counsel for the appellant has raised twofold submissions; he submits that finding of the First Appellate Court that plaintiff no.2 was Mutawalli of the waqf and he was competent to institute the suit is perverse and illegal inasmuch as the First Appellate Court has misinterpreted the waqf deed in concluding that plaintiff no.2 could be appointed as Mutawalli. He submits that as per the waqf deed, the male lenient descendant shall be appointed as Mutawalli and it is admitted on record that Usman was next in line after Suleman inasmuch as Usman was younger to Suleman and elder to plaintiff no.2, therefore, Usman could only be appointed as Mutawalli, and appointment of plaintiff no.2 as Mutawalli was illegal and in violation of the waqf deed. 15. He further contends that it is evident from the resolution of the Waqf Board dated 27.04.2010 appointing plaintiff no.2 as Mutawalli, that plaintiff no.2 was not the Mutawalli on the date of institution of suit, and therefore, he was not competent to institute the suit. 15. He further contends that it is evident from the resolution of the Waqf Board dated 27.04.2010 appointing plaintiff no.2 as Mutawalli, that plaintiff no.2 was not the Mutawalli on the date of institution of suit, and therefore, he was not competent to institute the suit. Accordingly, it is contended that the finding of the First Appellate Court in this regard is erroneous, and the question of law which arises for consideration in the present case is "whether the First Appellate Court has committed manifest illegality in reversing the finding of the Trial Court with regard to the fact that plaintiff no.2 could not be appointed as Mutawalli and was not competent to institute the suit." 16. He further submits that an amendment in Section 83 of the Waqf Act, 1995 has been incorporated by Act No.27 of 2013 and sub-section 1 of Section 83 has been substituted by the said Act, and after this amendment, the civil appeal preferred by the plaintiff stood abated, and the remedy of the plaintiff was to file a fresh suit before the Waqf Tribunal. 17. In rebuttal to the aforesaid submission, Sri Utpal Chatterji, learned counsel for the respondents has contended that there is no pleading in the written statement about the fact that the appointment of plaintiff no.2 as Mutawalli was in contravention of the waqf deed. It is submitted that the appointment of plaintiff no.2 as Mutawalli has not been assailed by the defendants in the written statement, and no specific plea has been set up in this regard, therefore, in the absence of any pleading challenging the appointment of plaintiff no.2 as Mutawalli, the Trial Court could not have gone into the question of the validity of appointment of plaintiff no.2 as Mutawalli nor any evidence could have been led on the said point in absence of any pleading challenging the appointment of plaintiff no.2 as Mutawalli in the written statement, therefore, the Trial Court has committed manifest illegality in holding that plaintiff no.2 could not have been appointed as Mutawalli. He submits that the law is settled that in the absence of any pleading, the evidence cannot be read and in this respect, he has relied upon the two judgments of Apex Court in the cases of Executive Officer, Arulmigu Chokkanatha Swamy Koil Trust, Virudhunagar Vs. Chandran and Others (2017) 3 SCC 702 & Kashi Nath (Dead) Through LRS. He submits that the law is settled that in the absence of any pleading, the evidence cannot be read and in this respect, he has relied upon the two judgments of Apex Court in the cases of Executive Officer, Arulmigu Chokkanatha Swamy Koil Trust, Virudhunagar Vs. Chandran and Others (2017) 3 SCC 702 & Kashi Nath (Dead) Through LRS. Vs. Jaganath (2003) 8 SCC 740 . 18. He further submits that the First Appellate Court has recorded a categorical finding that Usman was present during the recording of the testimony of plaintiff no.2, and he did not raise any objection nor appeared as a witness disputing the appointment of plaintiff no.2 as Mutawalli. He submits that the said finding has not been assailed by the defendants in the present appeal and in such view of the fact, no substantial question of law arises in the appeal calling upon the Court to invoke the power under Section 100 of C.P.C. 19. It is also submitted by Sri Utpal Chatterji, learned counsel for the respondents that the plaintiff/respondent has not disputed the validity of the appointment of plaintiff no.2 as Mutawalli even in their reply to the notice of the plaintiff. 20. So far as the question whether the First Appellate Court has jurisdiction to hear the appeal after amendment in Section 83(1) of the Waqf Act, he submits that the said issue was not raised by the plaintiff before the Trial Court as well as First Appellate Court and no issue was framed on this point, and therefore, the same cannot be raised the for the first time in the second appeal. 21. In the alternative, he submits that amendment in Section 83(1) of the Waqf Act was incorporated by Act No.27 of 2013 w.e.f. 01.11.2013 whereas the suit was decided by the Trial Court on 06.08.2011, therefore, lis between the parties has been decided by the competent civil court before the amendment was incorporated in Section 83(1) of the Waqf Act, and the appeal shall lie to a higher forum against the judgement and decree of the Trial Court, therefore, the submission of learned counsel for the appellant in respect of the competence of First Appellate Court in deciding the appeal is devoid of merit. He submits that the First Appeal before the First Appellate Court was maintainable being the higher court and the Waqf Act is silent in respect of the cases which have already been decided by the competent civil court before amendment in Section 83(1), and in such view of the fact, the First Appellate Court was competent to hear the appeal. 22. He has placed reliance upon the Preamble of the amending act which states that the Waqf (Amendment) Act, 2013 shall come into force on the date it was notified by the Central Government, and the amending act does not specify that it shall come into operation retrospectively, therefore, the act would operate prospectively, and proceeding pending before the competent Civil Court before amendment shall continue with the Civil Court and thus, for this reason also, the submission of learned counsel for the appellant with regard to jurisdiction of First Appellate Court is misconceived. 23. In rebuttal to the contention of learned counsel for the respondents that no specific plea has been raised by the defendants in the written statement disputing the appointment of plaintiff no.2 as Mutawalli, learned counsel for the appellant has placed reliance upon paragraph no.1 of the written statement of the defendants to contend that the appointment of plaintiff no.2 as Mutawalli has been denied by the defendants specifically, and the Trial Court framed the issue on this point, and no objection was raised by the plaintiff in respect to framing of such issue by the Trial Court and thus, the plaintiff was aware of the issue involved in the suit and object of the pleading is to communicate the other side to know the case of the party so that he or she may be in a position to reply the same, therefore, the submission of learned counsel for the respondents that no specific plea has been raised by the defendants disputing the appointment of plaintiff no.2 as Mutawalli is without substance. In this respect, he has placed reliance upon two judgments of the Apex Court in the cases of Bhagwati Prasad Vs. Chandramaul 1966 AIR (SC) 735 & Ram Sarup Gupta (Dead) by L.Rs. Vs, Bishun Narain Inter College and Others 1987 (2) SCC 555 . 24. I have considered the rival submissions of the parties and perused the record. 25. In this respect, he has placed reliance upon two judgments of the Apex Court in the cases of Bhagwati Prasad Vs. Chandramaul 1966 AIR (SC) 735 & Ram Sarup Gupta (Dead) by L.Rs. Vs, Bishun Narain Inter College and Others 1987 (2) SCC 555 . 24. I have considered the rival submissions of the parties and perused the record. 25. The specific case of the plaintiff was that plaintiff no.1 is the waqf and plaintiff no.2 is the Mutawalli. It is not disputed that the defendants are the tenants. The only issue which is being raised and contented by the learned counsel for the appellant is that the suit was not instituted by a competent person inasmuch as plaintiff no.2 was not appointed Mutawalli as per the waqf deed inasmuch as the male lenient descendent shall be appointed as Mutawalli as per the waqf deed. Thus, after the death of Suleman (the then Mutawalli), his next brother Usman could have been appointed as Mutawalli and not the youngest brother plaintiff no.2. 26. The reading of the waqf deed discloses that it provides that only male lenient descendent shall be appointed as Mutawalli, and there is no stipulation in the waqf deed which expressly or impliedly stipulates that the next male lenient descendant in line shall be appointed as Mutawalli. The waqf deed is silent in this regard, and learned counsel for the appellant could not place any stipulation in the waqf deed which expressly or impliedly discloses the intention of the creator of the waqf that after the death of Mutawalli, the next male lenient descendant in line shall be appointed as Mutawalli. 27. In the present case, the First Appellate Court has recorded a categorical finding that Usman, who was the next male lenient descendant after Suleman, was present in the court at the time of recording of the testimony of plaintiff no.2 and he did not raise any objection with regard to the appointment of plaintiff no.2 as Mutawalli. The relevant finding of the First Appellate Court is reproduced herein below:- 28. The relevant finding of the First Appellate Court is reproduced herein below:- 28. So far as the contention of learned counsel for the appellant that plaintiff no.2 was not competent to institute the suit as he was appointed Mutawalli by the Board of plaintiff no.1 in the year 2010 is concerned, the resolution dated 27.04.2010 of Waqf Board of the plaintiff no.1 establishes the fact that plaintiff-waqf had no objection to the appointment of plaintiff no.2 as Mutawalli, and the said letter implies that the Board of plaintiff no.1 has ratified the action of the plaintiff no.2 in instituting the suit. 29. At this stage, it is also relevant to consider the submission of learned counsel for the respondents that no specific denial has been made by the defendants in the written statement disputing the validity of the appointment of plaintiff no.2 as Mutawalli. 30. The learned counsel for the appellant has placed reliance upon paragraph no.1 of the written statement to contend that in paragraph no.1 of the written statement, defendants have denied the contents of paragraph no.1 of the plaint. To appreciate the said argument, it would be useful to have a glance at paragraph no.1 of the plaint and paragraph no.1 of the written statement of defendant nos.1 to 4 which are reproduced herein below:- Paragraph no.1 of the plaint:- 31. It is stated in paragraph no.1 of the plaint that plaintiff no.2 is Mutawalli of plaintiff no.1. 32. In reply to the aforesaid assertion in the plaint, defendants in paragraph no.1 of the written statement have made a bald denial. There is no specific denial in the written statement with regard to the fact that plaintiff no.2 has not been appointed as Mutawalli as per the waqf deed and his appointment was dehors the waqf deed. 33. This Court is of the view that such denial does not come within the periphery of denial as contemplated under Order 8 Rule 4 of C.P.C. which mandates that defendants must make specific denial. Order 8 Rule 5 of C.P.C. mandates that every allegation of the fact in the plaint should be denied specifically or by necessary implication, and if it is not done so, the said allegation shall be treated to be admitted. 34. Order 8 Rule 5 of C.P.C. mandates that every allegation of the fact in the plaint should be denied specifically or by necessary implication, and if it is not done so, the said allegation shall be treated to be admitted. 34. If paragraph no.1 of the written statement, reproduced above, is read in the light of the mandate of Order 8 Rule 4 and Order 8 Rule 5 of C.P.C., the Court is of the view that denial about the appointment of plaintiff no.2 as Mutawalli is only an evasive denial inasmuch as if the defendants were disputing the appointment and competence of plaintiff no.2 to act as Mutawalli of plaintiff no.1, the defendants should have specifically pleaded the grounds on which they alleged that the plaintiff no.2 could not be appointed as Mutawalli. 35. Though it is true that in the present case, the Trial Court has framed the issue in respect to appointment of plaintiff no.2 as Mutawalli, but in the absence of any specific denial in the written statement, the Trial Court did not need to frame an issue regarding the validity of the appointment of plaintiff no.2 as Mutawalli. The Trial Court also could not consider the evidence of the plaintiff in respect of the appointment of plaintiff no.2 as Mutawalli in the absence of any specific pleading by the defendants in the written statement denying the fact that the appointment of plaintiff no.2 as Mutawalli is in contravention to the waqf deed. On the aforesaid proposition of law, it would be useful to have a glance at the judgements of Apex Court namely, Executive Officer (supra) & Kashi Nath (supra) relied upon by the learned counsel for the respondents. 36. In the case of Executive Officer (supra), the Apex Court affirmed the finding of the Trial Court where the Trial Court discarded the sale deed dated 29.07.1974 in respect of the title of one Padmanabhan in the absence of any pleading claiming title based on sale deed dated 29.07.1974. The Apex Court held “The evidence, with regard to which there is no pleading, has rightly been discarded by the trial court. Unless there is a pleading, especially with regard to the source of title, the defendant of a suit has no opportunity to rebut such pleading. The Apex Court held “The evidence, with regard to which there is no pleading, has rightly been discarded by the trial court. Unless there is a pleading, especially with regard to the source of title, the defendant of a suit has no opportunity to rebut such pleading. Thus, evidence with regard to which there is no pleading cannot be relied upon by the plaintiff for setting up his title in a suit." 37. The Apex Court in the case of Kashi Nath (supra) in paragraph no.17 has held as under:- “17. From the judgments of the trial court, first appellate court and the High Court it is clear that there was no consistency so far as the claim regarding the adoption is concerned, particularly as to who and at what point of time it was made. The High Court has taken great pains to extract the relevant variations to indicate as to how it cut at the very root of plaintiff's claim. As noted by the Privy Council in Siddik Mohd. Shah v. Saran AIR 1930 PC 57 (1) and Trojan and Co. v. Rm. N.N. Nagappa Chetiar AIR 1953 SC 235 when the evidence is not in line with the pleadings and is at variance with it and as in this case, in virtual self- contradiction, adverse inference has to be drawn and the evidence cannot be looked into or relied upon. Additionally, as rightly submitted, the conclusion whether there was adoption is essentially one of fact merely depending upon pure appreciation of the evidence on record. This position has been stated in several decisions of this Court; e.g., Rajendra Kumar v. Kalyan (2000) 8 SCC 99 and Raushan Devi v. Ramji Sah (2002 10 SCC 205. Consequently, no exception could be taken to the well-merited findings concurrently recorded by the courts below, with which the High Court also rightly declined to interfere on the facts and circumstances of this case.” 38. Consequently, no exception could be taken to the well-merited findings concurrently recorded by the courts below, with which the High Court also rightly declined to interfere on the facts and circumstances of this case.” 38. So far as the judgements relied upon by the learned counsel for the appellant are concerned, though, it is no doubt true that the law is settled that the object of the pleading is to communicate the other party the case set up by a party and the Court should be liberal in interpreting the pleadings, and considerations of form cannot override the considerations of substance while ascertaining whether the pleadings though may not be happily worded but are sufficient and communicates the case of parties to other party. To ascertain the said issue, the Court has to apply a test whether, in the facts, the parties did not know what matter was in issue at the trial and had no opportunity to lead evidence in respect of it. 39. If the Court applies the aforesaid principles in the present case in finding out whether paragraph no.1 of the written statement communicates the case of the defendants about the challenge of appointment of plaintiff no.2 as Mutawalli, this Court is of the view that the answer is 'No' for the reasons given below. 40. The challenge has been laid by the defendants to the appointment of plaintiff no.2 on the ground that under the waqf deed, only the next in line male lenient descendant shall be appointed as Mutawalli. The written statement is bereft of the basic and essential pleadings of the fact as to which clause of the waqf deed was violated in appointing plaintiff no.2 as Mutawalli, and the most essential fact which ought to have been pleaded by the defendants that it is only Usman being next male lenient descendant in line after Suleman (the then Mutawalli) could have been appointed as Mutawalli and not the plaintiff no.2 who is younger to Usman. 41. 41. In such view of the fact, this Court is of the view that judgements relied upon by the learned counsel for the appellant are not applicable in the facts of the present case inasmuch as if the principles laid down in those judgements are applied in the facts of the present case, it cannot be said by any stretch of imagination that the pleading in the written statement in paragraph no.1 are sufficient and communicate the grounds on which the appointment of plaintiff no.2 as Mutawalli has been assailed. 42. During the argument, learned counsel for the respondents has produced a copy of notice paper no.13Ka/1, and perusal of the same reveals that the defendant has not challenged the appointment of plaintiff no.2 as Mutawalli in reply to the notice of the plaintiff. The defendant has admitted the fact that the suit property was taken on rent by a registered rent note dated 18.05.1972. It is stated that construction was raised by defendants from their sources and the lease in favour of the defendant was perpetual. The reply of the defendant to the notice of the plaintiff reflects that the defendant did not raise any objection to the appointment of plaintiff no.2 as Mutawalli and the competence of plaintiff no.2 to serve such notice upon the defendant. 43. Now coming to the question of jurisdiction in the present case. It is not in dispute that the question of jurisdiction was not raised by the defendants before the court below. However, since the question of jurisdiction raised by the appellant is a pure question of law, therefore, this Court proceeds to consider the same. 44. In the present case, the amendment has been incorporated by Act No.27 of 2013 w.e.f 01.11.2003. Admittedly, the civil court decided the lis between the parties on 06.08.2011 by dismissing the suit. So before the amending act came into force, the Trial Court had already concluded the suit and an appeal had been filed by the plaintiff/respondents. The parties have participated in the suit voluntarily and the suit has been decided by the competent court. The appeal is the continuation of the suit, but the appeal should always lie to a higher forum. 45. The parties have participated in the suit voluntarily and the suit has been decided by the competent court. The appeal is the continuation of the suit, but the appeal should always lie to a higher forum. 45. Since the amending act is silent about the forum of appeal in cases where the suit had been decided by the competent civil court before incorporation of amendment in the Waqf Act , therefore, the First Appellate Court was competent court to decide the appeal, and the objection of jurisdiction raised in the appeal is devoid of merit. 46. Thus, for the reasons given above, no substantial question of law arises in the present appeal which needs to be answered by this Court. Consequently, the appeal lacks merit and is hereby dismissed with no order as to costs.