THE HONOURABLE SMT. JUSTICE P.SREE SUDHA
CIVIL REVISION PETITION No.1606 of 2021
ORDER:
This Civil Revision Petition is filed against the Judgment of the Telangana State Waqf Tribunal in O.S.No.170 of 2016 (Old O.A.No.15 of 2009) dated 16.09.2021.
2. The plaintiff and defendant are sons of one Mohd.Ahmed Sharief. He registered Rahmania Charitable and Welfare Religious Trust as Settler and Chairman with three other trustees on 19.06.2000 under Ex.A1. The said trust purchased a house bearing Municipal No.11-1-12B situated at Aghapura, Hyderabad for construction of Masjid-e-Rahmania in the first floor under Ex.A2 and also constructed Mulgi No.1 to 3 in the ground floor to fetch income to meet the expenditure of the Masjid. The Chairman/father of P.W.1 and D.W.1 with the consent of all other trustees, got registered the subject Majid with its attached properties as Waqf property by virtue of notification published on Page No.729 of Ex.A3 Gazette. During his life time, their father was the Mutawalli. After the death of their father, P.W.1 was appointed as Mutawalli of the Masjid and the same was notified under Ex.A4 Gazette. Therefore, P.W.1 constructed second and third floors in the said Masjid for Pesh Imam and Mouzzin.
3. During the life time of father of P.W.1 and D.W.1, D.W.1 obtained the suit mulgies on lease on 01.06.2004, on the monthly rent of Rs.2,000/- excluding electricity charges. When the defendant was not paying the rent regularly to the suit mulgies, P.W.1 got issued Ex.A5 termination notice under Section.106 of the Transfer of Property Act to the defendant on 01.01.2009. He asked the defendant to vacate the suit mulgies on 01.02.2009 and to hand over its vacant physical possession and also to pay the arrears of rent. D.W.1 replied to Ex.A5 under Ex.A7 denying the claim of P.W.1. The rent of the suit mulgies that would have been realized as on the date of filing of the suit was around Rs.10,000/- per month. Hence, plaintiff requested the Court to decree the suit in his favour.
4. But, in the Written Statement filed by the defendant, he admitted the relationship between himself and P.W.1. He further stated that P.W.1 created Waqfnama in respect of subject Masjid and he had no right to file the present suit. The father of P.W.1 and D.W.1 purchased the property and constructed Masjid. Their father during his life time gifted the suit mulgies to D.W.1 and delivered on 09.06.2003 orally on the occasion of his birthday in the presence of witnesses. Later the said oral gift was acknowledged by way of memorandum of gift on 04.08.2005. Therefore, requested the Court to dismiss the suit.
5. The trial Court considering evidence on record in detail, decreed the suit with costs. Defendant was directed to vacate and handover the vacant and peaceful possession of the suit mulgies to the plaintiff within one month from the date of order and he was also directed to pay arrears of rent of suit mulgies from March 2007 to January 2009 for a period of 23 months @ Rs.2,000/- per month which comes to Rs.46,000/- within one month from the date of order. Aggrieved by the said order, defendant preferred this Civil Revision Petition.
6. He mainly contended that the suit was filed by the Mutawalli in his personal capacity. As such, it is not maintainable. There is specific embargo upon the Mutawalli for initiating a suit for eviction as per Rule 20(6)(v) of the Andhra Pradesh (Telangana) Waqf Rules 2000. He further stated that the tribunal failed to appreciate the true spirit and nature of Section 50 of the Waqf Act, 1995 r/w. Rule 20 of the Andhra Pradesh (Telangana) Waqf Rules 2000. He extracted the duties of Mutawalli and further stated that Judgment of the tribunal suffers from incurable infirmity as such, the suit itself is bad in the eyes of law and is hit by Order I Rule IX C.P.C for non- joinder of Waqf Board as proper and necessary party. He also stated that it is the duty of the Mutawalli as per Section 50 of the Waqf Act, 1995 to bring to the notice of the waqf Board, if there is any illegal occupants over the Waqf property and it is for the Waqf Board to give notice to the illegal occupant and to vacate them by following due process of law. He also stated that tribunal awarded mesne profits @ Rs.5,000/- per month from 01.02.2009 without conducting inquiry as prescribed under Order XX Rule 12 of C.P.C.
7. He further stated that tribunal failed to frame the issues regarding determination of the property as whether it is Waqf property or not. It is the specific case of the petitioner that the property in dispute i.e, mulgies are not Waqf property, it was gifted by his father under Oral Hiba and subsequently, it was reduced to writing on 04.08.2005. The tribunal after considering the fact that the Memorandum of past Oral Hiba dated 04.08.2005 was not registered and sent for impounding. Aggrieved by the said order C.M.A.No.37 of 2013 was preferred by the petitioner before the City Civil Court, Hyderabad, which was dismissed on 17.04.2013. Against the said order, petitioner filed C.R.P.No.5294 of 2016 and the same was disposed of by order dated 13.11.2016 with an observation that petitioner can redress his grievance under Article 227 of the Constitution of India but not under Civil Revision Petition. As such, he filed W.P.No.10576 of 2017 and the same is pending for adjudication. The tribunal allowed the suit with an observation that petitioner has not placed any document to prove his case and no document was filed to prove that it was gifted to the petitioner by his father. Therefore, requested the Court to set aside the order passed in O.S.No.170 of 2016 dated 16.09.2021.
8. The suit is filed by the Mutawalli of the waqf property in respect of two mulgies No.2 and 3 in the subject Masjid (having triple shutters) admesuring 500 Sq.ft situated in the ground floor of subject Masjid bounded by as under:-
North : Road
South : Neigthbour's House No.11-1-127
East : Mulgi No.1 of Masjid-e-rahmania and
West : Road
9. The tribunal observed that as per Ex.A15 and Ex.B1 admitted by D.W.1, trust is the landlord and not his father, defendant is also well aware that the suit mulgies are part of the subject Masjid and he is the tenant of the said mulgies. As per Ex.A12, the Waqf Board has made enquiries and found that D.W.1 is the tenant of the suit mulgies. Apart from that Ex.A13 and A14 establish that D.W.1 filed copy of Ex.A15 before the Commercial Tax Officer stating that he is the tenant of the suit mulgies. D.W.1 also gave statement under Ex.A16 before the Commercial Tax Officer stating that he is the tenant of the suit mulgies and landlord is the trust. Therefore, it can be safely presumed that the suit mulgies are part and parcel of the Masjid. Therefore, the argument of the revision petitioner that suit mulgies are his own properties cannot be accepted. As per Section 106 of the Transfer of Property Act on 01.01.2009, termination notice was issued to him under Ex.A5. Ex.A6 which is the postal acknowledgment. Under Ex.A7 reply notice, the defendant stated that his father given oral gift of suit mulgies on 09.06.2003 and also acknowledgment of memorandum of oral gift which was given on 04.08.2005.
10. D.W.1 in his cross-examination clearly admitted that as per Ex.B1, he deposited three months rent in advance and he has not filed any document to show that his father was the owner of the suit mulgies. As such, D.W.1 is the tenant of the suit premises and it clearly shows that D.W.1 is the tenant of the suit mulgies which are the part of the subject Masjid. D.W.1 mainly contended that oral gift was given by his father on his birthday. Later, acknowledgment of memorandum of gift was executed. But, D.W.2 stated that he did not know who scribed the memorandum of gift. He does not know the fact that owner of the suit property is Rahmania Charitable Trust. According to him function was held inside the house and he was outside of the house. D.W.3 also stated in his cross-examination that he did not see the memorandum of gift dated 04.08.2005 and he was not present on that day. He clearly stated that, he only heard about the oral gift. As such, evidence of D.W.1 to 3 demolishes the entire case of the defendant in respect of oral gift and also its acknowledgement. D.W.1 never produced the gift deed dated 04.08.2005 if at all, it is really existing.
11. D.W.1 also admitted that he is the tenant of the suit mulgies as per Ex.A9 and A10 dated 13.02.2008. Ex.B3 contains the signature of the father of P.W.1 and D.W.1 under Ex.B2. This document also supports the case of the plaintiff. The oral testimony of P.W.1 is quite consistent and trustworthy. The evidence of D.Ws.1 to 3 demolished the case of the defendant. D.W.1 failed to pay the rents as claimed by P.W.1. Hence, issue No.1 and 2 are decided in favour of the plaintiff and against the defendant. The plaintiff has also claimed a sum of Rs.10,000/- per month towards mesne profits. But, the tribunal reduced it to Rs.5,000/- per month. The date of death of father of P.W.1 was not mentioned anywhere in the pleadings or in the evidence. But, P.W.1 stated that after demise of his father, he succeeded as Mutawalli of the Masjid, it was notified and published on Page No.927 in A.P.Gazette No.30 dated 26.07.2007. The case of the defendant is that his father gifted the property on his birthday i.e, 09.06.2003 and also oral gift was acknowledged by memorandum of gift on 04.08.2005. He has not raised the issue of oral gift when father of P.W.1 was alive and he has not explained the reasons for the execution of acknowledgment by way of memorandum of gift till 04.08.2005 i.e, after 2 years.
12. The revision petitioner herein, contended that no issue was framed regarding owner of the mulgies, but the tribunal clearly held that Masjid along with mulgies was registered with Rahmania Charitable and Welfare Religious Trust. Mulgies were let out and the rental income obtained from them was used for the maintenance of the Masjid. It is not the personal property of father of the P.W.1. As such, he cannot orally gift the same. According to his confession, during the life time of father of P.W.1, mulgies were leased to the defendant on monthly rent of Rs.2,000/- on 01.06.2004. Taking advantage of the lease of mulgies, without paying the rents properly, he came up with the pleading of oral gift and also memorandum of acknowledgment. As the said document was not properly stamped, it was sent for impounding to establish the oral gift under Mahammadan Law. The three essential ingredients are required under Mahammadan law are as follows:
"i) Declaration of the gift by the donor.
ii) Acceptance of the gift by the done and
iii) Delivery of possession, the rules of Mohammadan law do not make writing essential to the validity of gift, and oral gift fulfilling all the three essentials make the gift complete and irrevocable."
13. The revision petitioner also contended that P.W.1 filed suit in his personal capacity as there is specific embargo upon the Mutawalli from initiating a suit for eviction as per Rule 20 (6)(v) of the Andhra Pradesh (Telangana) Waqf Rules 2000. He further contended that in fact, as per Section 50 of the Waqf Act, 1995, it is for the Mutawalli to bring to the notice of the Waqf Board when there is an illegal occupants over the Waqf property and it is for the Waqf Board to give notice and to vacate them by following due process of law. He also contended that Waqf Board was not acted as proper and necessary party. He has to raise all these issues before the trial Court. But, he came up with all these points at the appellate stage. The trial Court though has not framed the issue, in detail discussion of all the points and considering the entire evidence in detail, rightly decreed the suit and also directed the defendant to hand over the peaceful possession of the mulgies to the plaintiff within one month from the date of order and directed him to pay arrears of rent for 23 months @ Rs.2,000/- per month which comes to Rs.46,000/- and the judgment of the trial Court to this extent suffers from no infirmity and needs no interference. But, the trial Court while granting mesne profits, simply observed that plaintiff claiming Rs.10,000/- per month, as it is excessive, considering the facts of the case and allegations of the suit mulgies, it is fixed as Rs.5,000/- per month.
14. Admittedly, for deciding the mesne profits, a separate application has to be filed under Order XX Rule 12 of C.P.C. Therefore, the said order of the trial Court regarding the granting of mesne profits @ Rs.5,000/- per month from 01.02.2009 is set aside.
In the result, this Civil Revision Petition is dismissed. However, the order of the trial Court in respect of awarding mesne profits is set aside.
Miscellaneous petitions pending, if any, shall stand closed.
_________________________ JUSTICE P.SREE SUDHA DATED: 01.11.2022 tri THE HONOURABLE SMT. JUSTICE P.SREE SUDHA CIVIL REVISION PETITION No.1606 of 2021 DATED: 01.11.2022 TRI