Madras High Court
Basheerunnissa Begum Sahibas Wakf Also vs Faud Moosavee on 21 December, 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 20.12.2023
Pronounced on 21.12.2023
CORAM
THE HONOURABLEMRS.JUSTICEK.GOVINDARAJANTHILAKAVADI
Second Appeal. No.652 of 2007
and M.P.Nos.1 &2 of 2007
Basheerunnissa Begum Sahibas Wakf also
known as Raza Baugh Endowment
rep. By its Muthavalli
Md.Jalaluddin Akbar ....Appellant/plaintiff
Vs.
1.Faud Moosavee
2.Munavar Basha
3.H.M.Sheriff (deceased)
4.Kalyani Radhakrishnan
5.Kheerunnissa
6.Begum January
7.Afsar Jahan
8.Faizajahan
9.Nishath Jahan
...Respondents/Defendants
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Prayer: Second Appeal has been filed under Section 100 of CPC, against
the Judgement and Decree dated 30.11.2005 made in A.S.No.248 of 2004
on the file of the 2nd fast track cum Additional District Court, Chennai-600
001, confirming the decree and judgment dated 20.11.2003 in
O.S.No.2222/98 on the file of the Wakf Tribunal/I Assistant Judge, City
Civil Court, Chennai.
For Appellant : Mr.P.Haribabu
for Mr.H.Nazirudeen
For R1 : Mr.N.A.Nassir Hussain
For R2 to R8 : No appearance
JU D G M E N T
This second appeal is preferred against order dated dated
30.11.2005 made in A.S.No.248 of 2004 on the file of the 2nd fast track
cum Additional District Court, Chennai-600 001, confirming the decree
and judgment dated 20.11.2003 in O.S.No.2222/98 on the file of the Wakf
Tribunal/I Assistant Judge, City Civil Court, Chennai.
2.The suit in O.S.No.2222 of 98 was filed by the appellant/plaintiff
to evict the defendants from the plaint schedule and to deliver vacant
possession of the land belonging to the Basheerunnisa Begam Sahiba's
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wakf also kown as Raza Baugh Endowment.
3.The case of the plaintiff in brief.
The Plaintiff is a surveyed and notified Wakf. The object of the
wakf is to perform the annual ceremonies in respect of wakf ancestors and
other religious ceremonies. The plaintiff wakf owns land measuring 3540
sq.ft. Bearing Door No.78, Besant Road, Chennai – 600 014. One
Salihuddin, father of the plaintiff was the Muthvalli Jalalluddin Akbar
became the hereditary Muthavalli of the plaintiff wakf on 19.11.95. The
first defendant became the tenant of the suit land for a monthly rent of
Rs.100/-. The first defendant did not pay the rent from January, 1996 and a
sum of Rs,7400/- is due till the date of filing of the suit. The first
defendant has let out the suit property to the defendants 2 to 5 and they
have no right to continue in possession of the suit property. The first
defendant is the Muthavalli of Bayanbai's Wakf, Mysore. It is improper to
have wakf within wakf. On 23.12.95 the plaintiff issued a notice to the
first defendant and the first defendant sent a reply on 31.12.97 denying
that he was the tenant under the plaintiff in respect of the land and
superstructure in the suit property and claiming that he is the tenant in
respect of the land only. The first defendant has put up the construction
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on the wakf land without the permission of the plaintiff. The first
defendant has falsely stated that the rent was withheld since the plaintiff
demanded higher rent. The rent payable was only Rs.10/-. From January
1992 to December 1997, the rent payable was Rs.720/- and he sent a
Demand Draft for Rs.720/-. The Plaintiff returned it to the defendant,
since the entire rent was not paid. The fourth defendant sent a letter to the
plaintiff that she was paying the rent regularly to the wakf Board. Except
the fourth defendant, the other defendants 2,3 and 5 were paying the rent
at Rs.2000/- to the first defendant in violation of the lease agreement.
Hence the above suit was filed for eviction of the defendants and for
vacant possession of the suit property.
3.The first defendant filed a written statement denying all the
allegations in the plaint and resisting it. The suit against the first defendant
has been filed in his personal capacity and not as the Muthavalli of Bayan
Bais wakf which is the tenant of the land belong to the plaintiff and not
the tenant for the superstructure. As the suit has been filed against the first
defendant, the suit is not maintainable. The notice to quit issued by the
plaintiff is not valid. Bayan wakf is the tenant in respect of the suit land
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and the superstructure belongs to it. It is a statutory tenant and therefore
entitled to protection under the City Tenants Protection Act. The Suit is
not maintainable since no notice under section 11 of the city Tenants
Protection Act has been given to Bayan Bais Wakf. The rent payable for
the suit land is Rs.10/- per month and not Rs.100/- as alleged by the
plaintiff. From the inception of the tenancy the plaintiff's predecessor
Muthavalli had permitted the first defendant to induct tenants in the
premises and as such the plaintiff is estopped from questioning the
tenancy of the defendants 1 to 5. The first defendant is entitled to the suit
land under the City Tenants Protection Act and therefore the petition has
been filed under section 9 of the City Tenants Protection Act. The suit is
wholly devoid of merits and therefore the suit may be dismissed with
costs.
4.The second defendant filed a written statement resisting the
suit. The Plaintiff is not the owner of the suit land or the superstructure on
it. Therefore the suit is not maintainable. There is no nexus or jural
relationship of land lord and tenant between the plaintiff and the second
defendant. The plaintiff has no right to institute a suit for eviction against
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the second defendant. The survey Number and boundary furnished in the
plaint are not correct. Even if the land belongs to the plaintiff, the first
defendant alone is the owner of the superstructure on it. Neither the
second defendant nor other defendants pay the rent to the plaintiff. They
are paying the rent to the first defendant. The second defendant is in
occupation of about 1900 to 2100 sq.ft. His father was the tenant under the
first defendant and not under the plaintiff. After the death of his father the
second defendant is the tenant in respect of the suit property and is paying
the rent to the first defendant. The second defendant was not award of the
real owner of the suit land. Therefore the termination notice issued by the
plaintiff is not valid in law. No notice has been served to the defendants 2
to 5. Therefore the suit may be dismissed with cost.
5.The third defendant filed a written statement opposing the
suit and denying the allegations in the plaint that the plaintiff is not the
owner of the land or the superstructure. There is no nexus or jural
relationship between the plaintiff and the third defendant. Therefore the
plaintiff is not entitled tot file a suit for eviction of the third defendant.
The survey number and the boundary of the suit land furnished in the
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plaint are not correct. Without claiming a direction for demolishing the
superstructure, the plaintiff cannot seek vacant possession of the suit land.
Neither the third defendant nor defendant 2,4 and 5 paid any rent to the
plaintiff at any time. The third defendant is in occupation of about 1990 to
2100 sq.ft. And the area furnished in the plaint is not correct. Late
Mahrunnisa, the mother of the third defendant was the tenant under the
first defendant and they have been paying the rent to the first defendant. It
is not known anything about the real owner of the suit land. There are
some other tenants in the suit property and the plaintiff has not included
them and therefore the suit is bad for non jointer of parties. The notice of
terminating the tenancy issued by the plaintiff is not valid in law. The
third defendant is in occupation of the suit property for more than 30
years. The plaintiff is not entitled to any relief. Therefore the suit may be
dismissed with costs.
6.The fourth defendant filed a written statement resisting the
suit denying the allegations in the plaint. The fourth defendant entered
into a lease agreement with the first defendant in the year 1965 and
continuously paying the rent. The fourth defendant is not aware of the fact
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that the plaintiff is the owner of the suit land. The fourth defendant is not
aware of issue of publication of notice in one Tamil Daily. The fourth
defendant never attempted to repudiate the title of the plaintiff. The fourth
defendant is paying the rent to the first defendant. The plaintiff has no
cause of action against the defendant. Therefore the suit may be dismissed
with costs.
7.On the basis of pleadings the following issues and additional
issues were framed by the trial Court
1.Whether the plaintiff is entitled to vacant possession of the suit
property?
2.Whether the termination of tanancy by the plaintiff is valid?
3.To what relief the plaintiff is entitled to?
Additional issue:
1.Whether the defendants are entitled to compensation under
Section 3 of the City Tenants Protection Act?
8.The trial Court upon considering the pleadings and the materials
on record and the arguments advanced by the respective counsel for the
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parties, dismissed the suit giving liberty to the plaintiffs to comply with
Section 11 of the City Tenants Protection Act and to file a fresh suit for
eviction of the tenants if the plaintiffs so chooses. Aggrieved by this, the
plaintiffs preferred the appeal in A.S.No.248 of 2004 and the 1st appellate
Court vide its judgment dated 30.11.2005 dismissed the appeal by
confirming the judgment and decree passed by the trial Court. Aggrieved
by this, the plaintiff has come forward with the present second appeal. For
narrative convenience, the parties would be referred by their rank before
the trial Court in O.S.No.2222 of 1998 which is the subject matter of the
present appeal.
9.The facts of the case are summarised as below:
(i) The plaintiff is a surveyed and notified wakf.
(ii) The 1st defendant was the tenant in respect of the suit land and
superstructure under the plaintiff and he defaulted in payment of rent from
January 1992 onwards.
(ii) The contention of the 1st defendant that he is not a tenant in
respect of the superstructure and the same belongs to him is false.
(iv)Inspite of the legal notice issued to the 1st defendant, the 1st
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defendant failed to pay the rents and vacate the suit property.
(v) The plaintiff received a letter from the 2nd defendant stating that
he is a tenant under the 1st defendant for the past 45 years.
(vi) The conduct of the 1st defendant tantamount to violation,
endanger the rights of the Wakf administration.
(vii) Hence the plaintiff was constrained to file the above suit for
recovery of possession. Since the tenancy in favour of the 1 st defendant
was terminated as set out in the legal notice dated 23.12.1997.
10.On the other hand, the contention of the 1st defendant is that the
suit against the 1st defendant has been filed in his personal capacity and
not as the Muthavalli of Bayan Bais Wakf which is a tenant of the land
belonging to the plaintiff and not the tenant for the superstructure. Hence,
the suit is not maintainable. Since it is a statutory tenant, entitled to
protection under the City Tenant Protection Act. The suit is not
maintainable since no notice under Section 11 of the City Tenant
Protection Act has been given to Bais Wakf. The rent payable for the suit
land is Rs.10 per month not Rs.100/- as alleged by the plaintiff. From the
inception of the tenancy the plaintiff predecessor Muthavalli had
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permitted the first defendant to induct tenancy in the premises and as
such the plaintiff is estopped from questioning the tenancy of the
defendants 1 to 5. The 1st defendant is entitled to buy the suit land under
the City Tenant Protection Act and therefore, the petition has been filed
under Section 9 of the City Tenants Protection Act. The suit is wholly
devoid of merits and liable to be dismissed.
11.The contention of the defendants 2, 3 & 4 is that the plaintiff is
neither the owner of the suit land or the superstructure on it. There is no
jural relationship of landlord and tenant between the plaintiff and the
above defendants. The plaintiff has no right to institute a suit for eviction
against the above defendants. The 1st defendant is alone the owner of the
superstructure. The above defendants never paid the rents to the plaintiff.
They are paying the rent only to the 1st defendant. Therefore, the
termination notice issued by the plaintiff is not valid in law. Hence, the
suit is liable to be dismissed.
12.During pendency of the appeal, the 1st respondent herein who is
the 1st defendant in the suit filed an affidavit on 20.12.2022 stating that he
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has surrendered tenancy to the appellant/Wakf on the date of signing the
affidavit. The 1st respondent had also made it clear in the affidavit that he
is surrendering the tenancy in favour of the appellant/wakf and he waives
all claim over the superstructure in the suit property, subject to, the 1st
respondent being absolved of any claim that may be made against him.
The learned Counsel for the appellant on instructions submitted that the
1st respondent is absolved of any claim that may be made against him. It is
also informed that respondents 3 to 8 have surrendered possession and it
is only the 2nd respondent/2nd defendant yet to surrender possession. The
1st respondent/1st defendant had initiated proceeding for evicting the 2nd
respondent/2nd defendant from the suit premises.
13.In view of the above facts, that the 1st respondent/1st defendant
submits to the decree in the present appeal and the eviction proceedings
initiated by the 1st respondent/ 1st defendant against the 2nd respondent/2nd
defendant before the rent authority and the Wakf tribunal which have
culminated in C.R.P.No.1710/10, 2165, 2166/13 becomes infructuous and
accordingly, the above revision petitions were dismissed as infructuous by
the order of this Court dated 13.06.2023. The 2nd respondent/ 2nd
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defendant remained absent in the appeal suit. The arguments put-forth by
the learned counsel for the appellant that the Courts below erroneously
held that the 1st respondent/1st defendant is the absolute owner of the
superstructure and erroneously directed the plaintiff to pay compensation
to the 1st respondent/1st defendant under the provision of City Tenants
Protection Act. By virtue of the affidavit filed by the 1st respondent/1st
defendant surrendering the tenancy to the plaintiff and claiming no right
over the superstructure, it is made clear that the plaintiff is the owner of
the suit premises along with the superstructure. Moreover, it is not
established that the 1st respondent/1st defendant had any right or authority
to sublet various portions in favour of the other respondents/defendants.
Therefore, it has to be assumed that other defendants are in occupation of
the suit premises without any authority. The Courts below in the absence
of any legal sanction erroneously directed the plaintiff to pay the
compensation to the 1st respondent/1st defendant. In the absence of any
contra submissions, the aforesaid arguments put-forth by the learned
counsel appearing for the appellant/plaintiff is acceptable. The Courts
below having accepted the landlord and tenant relationship between the
plaintiff and the 1st respondent/1st defendant committed manifest error in
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holding that the superstructure existing in the suit property belong to the
1st respondent/1st defendant. The Courts below ought to have seen whether
the superstructure constructed in the suit property is contravening the
provisions of Wakf Act 1995. The Courts below failed to consider the
default in payment of rent committed by the 1st respondent/1st defendant.
The Courts below failed to consider that Section 11 of City Tenant
Protection Act is not applicable to the properties owned by any religious
and charitable endowment. Since the 2nd respondent/2nd defendant failed
to establish that the 1st respondent/1st defendant had authority to induct the
2nd respondent/2nd defendant as tenant in the suit premises, it has to be
presumed that the 2nd respondent/2nd defendant is only in wrongful
occupation of the suit premises. Hence, the 2nd respondent/2nd defendant is
liable to vacate the suit premises. Accordingly, the judgment and decree
passed in O.S.No.2222/98 and in A.S.No.248/2004 is set aside. The 2nd
respondent/2nd defendant is directed to vacate from the portion of the suit
property occupied by him within a period of one month from the date of
receipt of copy of the order failing which, the plaintiff is at liberty to take
delivery of the property in the manner known to law.
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14.In the result, this Second Appeal is allowed. No cost.
Consequently connected miscellaneous petitions are closed.
21.12.2023
vsn
Internet:Yes/No
Index:Yes/No
Speaking/Non-speaking order
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K.GOVINDARAJAN THILAKAVADI, J.
vsn
PRE- DELIVERY JUDGEMENT MADE IN
M.P.Nos.1 &2 of 2007
21.12.2023
https://www.mhc.tn.gov.in/judis
