Madhya Pradesh High Court
Janab Chhiddu Khan vs Anjuman Islamia Committee Jama Masjid on 16 April, 2025
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
NEUTRAL CITATION NO. 2025:MPHC-JBP:17820
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 16th OF APRIL, 2025
SECOND APPEAL No. 1074 of 2006
JANAB CHHIDDU KHAN
Versus
ANJUMAN ISLAMIA COMMITTEE JAMA MASJID
Appearance:
Shri Sanjay Sarwate - Advocate for the appellant.
Shri D.K. Dixit - Senior Advocate with Shri Anshul Dixit - Advocate for the
respondent.
JUDGMENT
This second appeal has been preferred by the appellant/defendant/
tenant challenging the judgment and decree dated 7/3/2006 passed by
Additional District Judge, Khurai, District Sagar in Civil Appeal
No.94A/2004 affirming the judgment and decree dated 3/9/2004 passed by
First Civil Judge Class-II, Khurai, District Sagar in Civil Suit
No.243A/2002, whereby Courts below have concurrently decreed the
respondent/plaintiff's suit for eviction on the ground under Section 12(1)(i)
of the M.P. Accommodation Control Act, 1961 (in short „the Rent Act‟).
2. In short, the facts are that respondent/plaintiff had instituted a suit
on 21.10.2002 with the allegations that the plaintiff is a registered Waqf
and is exempted from operation of the provisions of the Rent Act. The
defendant is tenant in the suit house on rent of Rs.300/- per month and has
not paid the rent w.e.f.1/8/2001 in spite of service of notice of demand. It
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is alleged that the rented house is required bonafide for residence of
Maulvis and children of Madarsa (school) and there is no other alternative
accommodation available with the plaintiff in the township of Khurai. The
rented house is also required for rebuilding and the same is not possible
without getting the rented house vacated from the defendant/tenant. It is
also alleged that the defendant has sublet the house to other person and has
raised construction of a big house, which is suitable for his residence.
On inter alia allegations, the suit was filed.
3. The appellant/defendant appeared and filed written statement
denying the allegations made in the plaint. It is specifically denied that the
plaintiff is a registered Waqf, with the further contention that Yasin
Ahmad is not a competent person to file the suit on behalf of plaintiff-
committee. However, admitting the relationship of landlord and tenant
between the parties, the defendant contended that there are no arrears of
rent and the rented accommodation is not required by the plaintiff for
residence of children of school and Maulvis because there is sufficient
alternative accommodation available with the plaintiff for its alleged need,
with the further contention that the accommodation is not required by the
plaintiff for rebuilding. It is also contended that the defendant has not
sublet the house, however, in para 5 of his written statement the defendant
admitted that he has raised construction of a new house. On inter alia
contentions, the suit was prayed to be dismissed.
4. On the basis of pleadings of the parties, Trial Court framed as
many as 10 issues and recorded evidence of the parties and for want of
document regarding registration of Waqf, held that the plaintiff is not
exempted from operation of the provisions of the Rent Act and on the basis
of admissions made by the defendant, especially in the light of admitted
relationship of landlord and tenant in between the parties, decreed the suit
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on the ground available under Section 12(1)(i) of the Rent Act vide
judgment and decree dated 3/9/2004.
5. Aforesaid judgment and decree passed by Trial Court was
challenged by the defendant/tenant, which was also dismissed by First
Appellate Court vide judgment and decree dated 7/3/2006.
6. Against the aforesaid judgment and decree passed by Courts
below, appellant/defendant preferred instant second appeal, which came in
hearing on 4/11/2006 and was admitted for final hearing on the following
substantial question of law:-
"Whether the suit which was in relation to wakf
property was maintainable before the Civil Court in
view of section 85 of the Wakf Act, 1995?"
7. In addition to the aforesaid substantial question of law formulated
by this Court, the appellant/defendant by filing an application under
Section 100(5) of C.P.C. (I.A. No.6777/2025) also proposed the following
substantial questions of law:-
"A. Whether, the Learned Courts below acted
contrary to section 3 of M.P. Accommodation Control
Act and notification dated 07.09.1989 whereby,
exemption was granted to Wakf, registered under
Wakf Act and public trust registered under Madhya
Pradesh public trust Act, in granting the decree under
section 12(1)(i) of M.P. Accommodation Control Act?
B. Whether, in view of the pleadings in para 1 and 8
of plaint decree can be passed under the M.P.
Accommodation Control Act?
C. Having held that plaintiff has not validly and
legally terminate the tenancy as required under section
106 of Transfer of Property Act, can a decree be
passed under M.P. Accommodation of Control Act?"
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8. Learned counsel for the appellant/defendant submits that in view
of the case pleaded in the plaint to the effect that the plaintiff is a
registered Waqf and the rented premises is a Waqf property, the suit filed
before Civil Court was not maintainable in the light of Section 85 of the
Waqf Act, 1995 (in short „the Waqf Act‟). He submits that in the light of
pleadings made in the plaint, first of all Civil Court had no jurisdiction to
try the suit and secondly the plaintiff being a registered Waqf, is exempted
from operation of the provisions of the Rent Act. He further submits that
although in the written statement defendant has denied existence of
registered Waqf, but in para 10 of his oral testimony, the defendant-
Chhiddu Khan (DW-1) has admitted the plaintiff to be a registered Waqf
and question of jurisdiction of the Court can be raised at any stage of the
suit as well as in second appeal. In support of his submissions, learned
counsel placed reliance on decisions of Hon'ble Supreme Court in the case
of Dr. Jagmittar Sain Bhagat v. Dir., Health Services, Haryana and Ors.,
AIR 2013 SC 3060; and Rashid Wali Beg Vs. Farid Pindari and
others, (2022) 4 SCC 414; as well as on a Division Bench decision of this
Court in the case of Wakf Imambara Imlipura Vs. Khursheeda Bi, 2009
AIR (MP) 238 and submits that Courts below have committed an illegality
in passing decree of eviction on the ground under Section 12(1)(i) of the
Rent Act.
9. Per contra, learned counsel appearing for the respondent/landlord
submits that although the plaintiff came with the case that the plaintiff is a
registered Waqf, but the same was denied by the defendant specifically in
the written statement, therefore, Trial Court framed issue No.7 to the effect
"as to whether the plaintiff is exempted from operation of provisions of the
Rent Act" and upon due consideration of the material available on record,
held that the plaintiff is not proved to be a registered Waqf and as such, is
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not exempted from operation of provisions of the Rent Act. He submits
that in presence of existing pleas taken in the written statement, the
defendant rightly did not take any objection about jurisdiction of Civil
Court and now at the stage of second appeal, in view of concurrent
findings of fact recorded by Courts below, the defendant cannot be
permitted to take the aforesaid plea/objection regarding jurisdiction of
Civil Court. He further submits that in the light of admissions made in para
5 of the written statement as well as in para 9 of oral statement of
defendant-Chhiddu Khan (DW-1), Courts below have rightly granted
decree of eviction on the ground under Section 12(1)(i) of the Rent Act,
because the defendant has raised construction of a big and suitable house,
in which he is residing for last 10-12 years prior to recording of his
statement on 11/8/2004. With these submissions, he prays for dismissal of
the second appeal.
10. Heard learned counsel for the parties and perused the record.
11. In the present case, there is no dispute about relationship of
landlord and tenant in between the plaintiff and defendant. The plaintiff
has come with a case that the plaintiff is a registered Waqf and is exempted
from operation of the provisions of the Rent Act and in the written
statement the defendant has specifically denied existence of registered
Waqf. Consequently, Trial Court framed issue No.7 in respect of
applicability of the provisions of the Rent Act to the instant suit and upon
due consideration of evidence led by the parties, came to a conclusion that
the plaintiff has failed to prove that it is a registered Waqf or the rented
property is a Waqf property and resultantly, concluded that the plaintiff is
not exempted from operation of the provisions of the Rent Act.
12. Apparently, before the Courts below the defendant has not taken
any objection about jurisdiction of Civil Court and at the stage of second
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appeal, the defendant has taken the objection of jurisdiction that too at the
time of formulation of substantial question of law, however, in the memo
of second appeal no such objection has been raised. Although the
defendant is taking the objection of jurisdiction in the second appeal, but in
memo of second appeal no such substantial question of law has been
proposed by the defendant nor has been formulated by this Court
questioning legality of the findings recorded by Courts below regarding
status of the plaintiff. In my considered opinion, until and unless any
substantial question of law is formulated in that regard or the findings
recorded by Courts below regarding status of the plaintiff are reversed, the
substantial question of law formulated by this Court cannot be said to have
arisen in the second appeal. As such, it is held that the substantial question
of law formulated by this Court on 4/11/2006 does not arise in the second
appeal, especially in the light of concurrent findings of fact recorded by
Courts below to the effect that the plaintiff is not proved to be a registered
Waqf.
13. So far as the substantial questions of law proposed by the
appellant/defendant by way of application under section 100(5) of the CPC
(IA No.6777/2025) are concerned, the substantial questions of law Nos. A
and B appear to have been framed in different manner and in fact they are
also in respect of jurisdiction of Civil Court, therefore, are not required to
be formulated by this Court and are not necessary for adjudication of real
dispute involved in the second appeal.
14. So far as proposed substantial question of law No. C is
concerned, Courts below have found that the provisions of the Rent Act
are applicable to the present case, therefore and in view of the fact that for
passing decree of eviction on the ground under Section 12(1)(i) of the Rent
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Act there is no need to issue notice, the substantial question of law No. C
also does not arise.
15. Resultantly, declining interference in the judgment and decree
passed by Courts below, the second appeal fails and is hereby dismissed.
16. Misc. application(s), pending if any, shall stand closed and
interim order of stay, if any, shall stand vacated.
(DWARKA DHISH BANSAL)
JUDGE
Arun*
