Himachal Pradesh High Court
Prakash Jaryal Son Ofl Shri vs H.P. Wakf Board on 4 May, 2022
Bench: Tarlok Singh Chauhan
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 4TH DAY OF MAY, 2022
BEFORE
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
.
CIVIL REVISION NO. 96 OF 2012
Between:
1. PRAKASH JARYAL SON OFL SHRI
NAND LAL RESIDENT OF VILLAGE AND
POST OFFICE DARI, TEHSIL
DHARAMSHALA, DISTRICT KANGRA,
H.P. r ...PETITIONER
(BY MR. AJEET SINGH SAKLANI,
ADVOCATE.)
AND
1. H.P. WAKF BOARD
SHIMLA THROUGH ITS
ESTATE OFFICE, BRANCH
OFFICE DHARAMSHALA,
TEHSIL DHARAMSHALA,
DISTRICT KANGRA, H.P.
2. SH. BHUPINDER SINGH
SON OF NAND LAL,
RESIDENT OF VILLAGE
DARI, TEHSIL
DHARAMSHALA, DISTRICT
KANGRA, H.P.
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2
...RESPONDENTS
(BY MR. R.K. BAWA, SENIOR ADVOCATE WITH
MR. JEEVESH SHARMA, ADVOCATE FOR
.
RESPONDENT NO. 1)
Reserved on :29.4.2022
This petition coming on for hearing this day,
this Court passed the following:
J U D G M E N T
Defendant No. 1/petitioner is aggrieved by
the judgment and
r decree dated 31.5.2012, passed by
learned Wakf Tribunal (District Judge) Kangra at
Dharamshala in Civil Suit No. 03D/I/2009 which held
the plaintiff/respondent No. 1 legally entitled for
recovery of rent for three years, prior to institution
of the suit i.e. 17.1.2009 to the tune of Rs. 7200 /
@ 200/ per month alongwith interest @ 9% per annum. It
further held the plaintiff/respondent No. 1 to be
entitled to recovery of illegal usage and occupation
charges w.e.f. 17.1.2009 till delivery of possession @
Rs. 200/ alongwith interest @ 9% per annum.
2. The parties shall be referred to as the
plaintiff and defendants. The plaintiff filed a suit
for possession on account of demolition of a temporary
construction (khokha) existing over land comprised in
khata No. 451,khatauni No. 679, khasra No. 951 min area
measuring 102 sq. meters as per jamabandi for the year
.
200304, situated at Gabli Dhar, Mauza Khaniara, Tehsil
Dharamshala, District Kangra. An additional relief for
recovery of Rs. 55,600/ was also sought against
defendant No. 1 on account of arrears of rent w.e.f.
1.10.1996 to 31.3.1996 amounting to Rs. 22600/ @ 200
per month.
3. It is r averred that plaintiff is owner in
possession of the suit property, over which it inducted
defendant No. 1 as tenant, vide allotment order dated
22.2.2011 (Ext. P4). It was averred that rent of
arrears was fixed @200/ but defendant No. 1 was
regular defaulter in payment of rent. Not only this,
defendant No. 1 violated the terms and conditions of
the tenancy by raising a temporary construction
(Khokha) on the rented land, that too without the
approval and consent of the plaintiff. It was further
pleaded that defendant No. 1 had sublet the land and
temporary construction to defendant No. 2 without any
authority and had also delivered the possession to him
without any right and without consent of the plaintiff.
Lastly, it was averred that the plaintiff required the
suit land/property for its personal use and occupation
and therefore it terminated the tenancy of defendant
.
No. 1 w.e.f. 31.1.2006. Notice to this effect had
been sent upon defendant No. 1 under Section 106 of
Transfer of Property Act dated 7.3.2006. Defendants
were requested to hand over the vacant possession of
the suit land/property on or before 1.4.2006, but they
failed to do so,hence the suit.
4. Defendant No. 1 contested the suit by filing
the written statement, wherein preliminary objections
regarding maintainability, form, valuation and
jurisdiction were raised. On merits, it was pleaded
that monthly rental of the suit premises/land had been
fixed at Rs. 100/ which was duly paid by defendant
No. 1 all throughout and in this way, defendant No. 1
had not violated the terms and conditions of the
tenancy.
5. Defendant No. 2 filed a separate written
statement, wherein similar preliminary objections, as
had been raised by defendant No. 1, were raised. On
merits, it was pleaded that defendant No. 1 had not
inducted defendant No. 2 as tenant and had also not
delivered the possession of the land and temporary
construction, as alleged.
6. Plaintiff filed replication wherein he re
.
asserted and reitereated the averments made in the
plaint and the contrary averments made in the written
statement were denied.
7. Learned Court below on 2.3.2010 has framed
the following issues:
1. Whether plaintiff is entitled for recovery
of property and Rs. 55600/(Rs. Fifty five
thousands six hundreds) as alleged? OPP
2. Whether present suit is not maintinable as
alleged? OPD
3. Whether suit has not been properly valued
for the purpose of court fee and jurisdiction
as alleged? OPD
4. Whether this Tribunal has no jurisdiction
to try suit as alleged? OPD
5. Whether no cause of action accrued to
plaintiff as alleged? OPD
6. Relief.
8. After recording the evidence and evaluating
the same, learned Tribunal decreed the suit, as
aforesaid, constraining defendant No. 1 to file the
instant revision petition.
9. At the very outset, it is vehemently argued
by Shri Ajit Singh Saklani Advocate that judgment and
decree passed by learned Court below is coram non
.
judice. For this purpose, he would rely upon Section
83(4) of the Waqf Act, 1995 (for short, "the Act"),
which reads as under:
"83(4) Constitution of Tribunal, etc.: Every
Tribunal shall consist of
(a) one person, who shall be a member of the
State Judicial Service holding a rank, not
below that of a District, Sessions or Civil
Judge, Class I who shall be the Chairman;
(b) one person, who shall be an officer from
the State Civil Services equivalent in rank
to that of the Additional District
Magistrate, Member;
(c) one person having knowledge of Muslim
law and jurisprudence, Member;
and the appointment of every such person
shall be made either by name or by
designation"
10. Before dealing with the contention of
defendant No. 1, it needs to be noticed that point of
lack of jurisdiction has not been taken in the
petition. However, since it goes to the root of the
case, therefore, I deem it proper to adjudicate the
same.
11. It needs to be noticed that the provisions
.
quoted by the petitioner is one which was substituted
by the Act of 27 of 2013, dated 20.9.2013. Prior to
its substitution, sub section (4) read as under:
"Section 83 (4): Every Tribunal shall
consist of one person, who shall be a member
of the State Judicial Service holding a
rank, not below that of a District, Sessions
or Civil Judge, Class I, and the appointment
of every such person may be made either by
name or by designation."
12. The judgment and decree passed in this case
is dated 31.5.2012 i.e. before the substitution of
subsection (4) of the Act 27 of 2013. Since the
judgment in question has been passed by learned
District Judge, exercising the powers of Wakf
Tribunal, therefore, the judgment and decree passed by
it, cannot be termed to be coram non judice.
13. It is next contended that the judgment and
decree passed by learned Court below is totally
perverse, as it is not based on the correct
appreciation of pleadings and the evidence led by the
parties.
14. As regards the pleadings, the crux of the
.
pleadings have already been reproduced and therefore,
I would now proceed to deal with the evidence led by
the parties.
15. PW1 Beer Deen has filed his affidavit Ext.
PW1/A in his examination in chief, wherein it is
averred that the Civil suit was filed by Wakf Board
and being familiar with the facts of the case, he was
competent to swear on an affidavit, on its behalf. The
contents of the plaint were reiterated in verbatim, as
set out in the affidavit of PW1 and therefore, the
same need not be reproduced. He was crossexamined,
wherein he denied the suggestion that defendant No. 1
used to pay rent @100/ per month. He also denied the
suggestion that defendant No. 1 Prakash Jaryal had not
sublet the temporary shed construction in favour of
defendant No. 2. He further denied the suggestion that
notice under Section 106 of the Transfer of Property
Act had not been served upon defendant No. 1. Lastly
he denied the suggestion that defendant No. 1 was not
in illegal possession of the suit property after
termination of the tenancy.
16. DW1 Prakash Jaryal filed his affidavit Ext.
.
DW1/A in his examinationinchief, wherein he has
reiterated the contents of the written statement in
verbatim. In his crossexamination, he admitted that
the allotment order was made in his favour vide Ext.
P4. He has also admitted that site plan of the suit
property is Ext. P1. He further admitted that he did
not pay rent @ 200/ per month at any point of time.
He further admitted that he had constructed the
temporary construction voluntarily, that too without
seeking permission of the plaintiff. Further, he
denied that he had sublet the temporary shed in favour
of defendant No. 2. He admitted that he did not
register the shop under the Shop and Commercial
Establishment Act. He denied the suggestion that he
had violated the conditions of the agreement deed. He
further denied the suggestion that rent of the
premises was agreed at Rs. 200/ per month.
17. Thus, what is established on record is that
it was defendant No. 1 alone, who had been inducted as
tenant vide allotment letter, Ext. P4. As per recital
of this document, defendant No. 1 was alloted a plot
measuring 10.2 sq. meter on monthly rental of Rs.
200/ and the tenancy commenced w.e.f. 1.11.1994. The
.
vacant plot was alloted for a period of 11 months and
it was clearly provided that defendant No. 1 would not
sublet the property in question in any manner. It was
also provided in the allotment letter, Ext.P4 that no
alterations and additions in the suit property were
permissible without prior written permission of the
Board. The further recital in the allotment letter
states that any infringement of these conditions would
result in cancellation of allotment without prior
notice.
18. Now, the moot question is whether defendant
No. 1 had violated the terms of allotment letter. It
has been established on record that against monthly
rental of Rs. 200/, the petitioner, as per his own
case, paid only Rs. 100 per month. The rate of tenancy
of Rs. 200/ per month is indisputable as the same is
reflected in the allotment order, Ext. P4.
19. It is pertinent to point out that defendant
No. 1 did not place any cogent or reliable evidence on
record to prove that rent of the premises was fixed at
Rs. 100/ per month and not Rs. 200/ per month.
20. That apart, it is proved on record that the
.
plaintiff had terminated the tenancy of defendant No.
1 by serving a notice under Section 106 of the
Transfer of Property Act on 7.3.2006, wherein all the
violations made by defendant No. 1, had been pointed
out. The tenancy, as observed above, was only for a
period of 11 months and the plaintiff did not renew
the tenancy thereafter.
21. Once that be so, obviously the possession of
defendant No. 1 over the suit land, after termination
of the tenancny w.e.f. 1.4.2006 was totally unthorized
and therefore, he was liable to pay not only monthly
rental, but also the use and occupation charges.
22. Learned Court below has correctly
appreciated the pleadings/oral and documentary
evidence led by the parties and by no stretch of
imagination can these findings rendered by the Court
below be termed to be perverse, so as to call for
interference.
23. In view of the aforesaid observations and
discussion, I find no merit in this petition and the
same is accordingly dismissed, leaving the parties to
bear their own costs. Pending application(s), if any,
are also disposed of.
.
(Tarlok Singh Chauhan)
Judge
4TH May, 2022
Kalpana
r to
