Noor Mohammed vs Mohammed Hussain
2023 Latest Caselaw 8713 Raj

[2023:RJ-JD:34273]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 11533/2023

Rajasthan Board Of Muslim Wakf, Through Chief Executive Officer, Jalebi Chowk, Jaipur.

----Petitioner Versus

1. Mohd Hussain S/o Shri Mohammad, By Caste Muslim, R/o Mastan Shah Ka Takiya, Girdikot, Jodhpur.

2. Noor Mohammad S/o Shri Sulemaan Khan, By Caste Musali, R/o Shop No. 5, Mastan Shah Ka Takiya, Girdikot, Jodhpur.

----Respondents Connected With S.B. Civil Writ Petition No. 6626/2023 Noor Mohammed S/o Sh. Suleman Khan, Aged About 51 Years, R/o Shop No. 5, Mastan Shah Ka Takiya, Girdikkot, District Jodhpur (Raj.).

----Petitioner Versus

1. Mohammed Hussain S/o Sh. Mohammed Ji, R/o Mastan Shah Ka Takiya, Girdikkot, District Jodhpur (Raj.).

2. Rajasthan Board Of Muslim Waqf, Jaleli Chowk, Through Its Chief Executive Officer

----Respondents

For Petitioner(s) : Mr. Jitendra Chopra Mr. Muktesh Maheshwari a/w Mr. Aidan Choudhary & Mr. Yuvraj Singh.

For Respondent(s) : Mr. Ashok Patel a/w Mr. K.S. Solanki.

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

Reserved on 10/10/2023 Pronounced on 19/10/2023

[2023:RJ-JD:34273] (2 of 10) [CW-11533/2023]

1. Since both the instant petitions involve a common controversy,

though with marginal variation in the contextual facts, therefore,

for the purposes of the present analogous adjudication, the facts

and the prayer clauses are being taken from the above-numbered

S.B. Civil Writ Petition No.6626/2023, while treating the same as a

lead case.

1.1. However, the prayer clauses of both the instant petitions are

reproduced as hereunder:

CW No.11533/2023:

"It is therefore, most humbly prayed that this Writ petition may kindly be allowed. By an appropriate writ order or direction:

(i) The judgement dated 21.02.2023 passed by Appellate Rent Tribunal, Jodhpur in Rent Appeal no 4/2023 N.C.V. No (4/2023) (Mohamad Hussain v/s Noor Mohd. & Ors) may kindly be declared illegal and the same may be quashed and set aside.

(ii) Costs may kindly be also awarded.

(iii) Any other writ or direction that may be deemed fit, just and proper may kindly be issued in favour of the petitioners."

CW No.6626/2023:

"It is, therefore, most respectfully prayed on behalf of the Petitioner that this Writ Petition may kindly be allowed and:

I. By an appropriate writ, order or direction, the Impugned Judgment & Certificate dated 21.02.2023 (Annex-12) passed by the Learned Appellate Rent Tribunal, Jodhpur in Rent Appeal No.04/2023 (N.C.V. No.04/2023) ordering the eviction of the Petitioner from the disputed premises, may kindly be quashed and set aside; AND II. By an appropriate writ, order or direction, the Judgment & Certificate dated 03.11.2022 (Annex-10) passed by the Learned Rent Tribunal, Jodhpur Metro in Eviction Petition

[2023:RJ-JD:34273] (3 of 10) [CW-11533/2023]

No.74/2012 (Old No.87/2006) (NCV No.421/2014) may kindly be confirmed. Consequently, the eviction petition filed by the Respondent No.1 (Annex-1) may kindly be rejected in toto;

III. Any other appropriate order or direction, which this Hon'ble Court considers just and proper in the facts and circumstances of this case, may kindly be passed in favour of the petitioner."

2. Brief facts of the case, as placed before this Court by

learned counsel for the petitioner, are that respondent no.1

(Mohammed Hussain)-landlord filed an eviction petition under

Sections 9 (A) & 18 (2) of the Rajasthan Rent Control Act, 2001

(hereinafter referred to as 'Act of 2001') before Rent Tribunal,

Jodhpur against the petitioner-tenant (Noor Mohammed), stating

therein that a property was situated at Mastan Shah ka Takiya

Girdikot, Ghasmandi Road, Jodhpur, wherein shop no.5 was let out

on rent to the petitioner-tenant (Noor Mohammed). The petitioner

did not make the payment towards rent from August, 2005

onwards, and thus, the respondent no.1 filed the aforementioned

eviction petition.

2.1. During the pending of the eviction suit, the respondent no.2-

Rajasthan Board of Muslim Waqf filed an application seeking its

impleadment in the eviction petition filed by the respondent no.1,

which was allowed by the learned Rent Tribunal, thus, impleading

the respondent no.2 as party defendant in the eviction petition.

2.2. The learned Rent Tribunal i.e. the learned Additional Chief

Judicial Magistrate (Rent Tribunal), Jodhpur Metropolitan vide the

judgment & certificate dated 03.11.2022 dismissed the eviction

petition preferred by the respondent no.1. Aggrieved by the same,

[2023:RJ-JD:34273] (4 of 10) [CW-11533/2023]

the respondent no.1 preferred an appeal under Section 19 (6) of

the Act of 2001 before the learned Appellate Rent Tribunal,

Jodhpur Metropolitan, which was allowed vide the impugned

judgment & certificate dated 21.02.2023, ordering eviction of the

petitioner-tenant from the disputed premises.

3. In Writ Petition No.6626/2023, learned counsel for the

petitioner-tenant submitted that there was no existing landlord-

tenant relationship between the parties, and that, the respondent

no.1 had concealed certain material facts, to the effect, amongst

others, that though he was collecting the rent, but was not the

lawful owner of the property in question; whereas respondent

no.2-Rajasthan Board of Muslim Waqf was the actual landlord of

the petitioner-tenant, as the respondent no.2 was the actual

owner of the property in question.

3.1. Learned counsel further submitted that the present matter

falls under the exception category of the Act of 2001 and the

learned Appellate Rent Tribunal was having no jurisdiction to

decide the issue involved in the present case, because the

respondent no.1 was not at all the owner of the property in

question.

3.2. Learned counsel also submitted that as per the Gazette

Notification, 1966, the property in question was declared as Waqf

Property, and therefore, the case was not covered under the Act of

2001. It was thus submitted that the impugned judgment has

been passed by the learned Appellate Rent Tribunal, without

taking into due consideration the relevant aspects of the case.

[2023:RJ-JD:34273] (5 of 10) [CW-11533/2023]

4. In Writ petition no. 11533/2023, learned counsel for the

petitioner-Rajasthan Board of Muslim Wakf submitted that the

premises in question is a Wakf property and all dispute regarding

the said premises deserves to be decided only by the Wakf

Tribunal, and thus, the Appellate Rent Tribunal, while passing the

impugned judgment, has exceeded its jurisdiction.

4.1. It was further submitted that the Wakf Board filed a civil suit

against the respondent no.1-Mohammed Hussain for recovery of

possession, eviction and permanent injunction, which was decreed

by the competent Court in favour of the Wakf Board on

20.07.2015, and therefore, it is clear that only the Wakf Tribunal

has power to adjudicate the eviction petition in question, and on

that count alone, the impugned judgment passed by the learned

Appellate Rent Tribunal deserves to be quashed and set aside.

5. In support of such submissions, learned counsel relied upon

the following judgments:-

(a) Punjab Wakf Board Vs Sham Singh Harike (2019) 4 SCC 698;

(b) Ramesh Chand Vs Marwar Muslim Education And Welfare

Society (S.B. Misc. Application No. 45 of 2019, and other

connected matters decided by this Hon'ble Court on 18.11.2019);

(c) Mafidarana Madariya Almeen & Ors. Vs State of Rajasthna &

Ors. (S.B.C.W.P. No. 2405 of 1997, decided by a Coordinate

Bench of this Hon'ble Court at Jaipur Bench on 24.05.2005);

(d) Rajasthan Wakf Board Vs Devki Nandan Pathak & Ors. (Civil

Appeal No. 6310 of 2017, decided by the Hon'ble Apex Court on

04.05.2017);

(e) Haryana Wakf Board Vs Mahesh Kumar AIR 2014 SC 501; and

[2023:RJ-JD:34273] (6 of 10) [CW-11533/2023]

(f) Sardar Khan & Ors. Vs Syed Najmul Hasan (Seth) & Ors.

(2007) 10 SCC 727;

6. On the other hand, learned counsel appearing on behalf of

the respondent no.1 -Mohammed Hussain, while opposing the

aforesaid submissions made on behalf of the petitioners,

submitted that after giving the premises in question on rent, rent

receipts were being issued in the name of Suleman (Father of the

respondent no.1) in the year 1976, and for last 20-25 years, the

rent was being collected by the respondent no.1.

6.1. It was further submitted that the learned Appellate Tribunal

observed that there is an existing landlord and tenant relationship

between the respondent no.1 and petitioner-tenant. It was also

submitted that the title is not relevant in the eviction matter, and

therefore, the impugned judgment passed by the learned

Appellate Rent Tribunal does not suffer any legal infirmity or

illegality.

6.2. It was also submitted that the respondent no.1 falls under

the definition of the landlord and there is no question of title of the

property involved herein. It was also submitted that all the

relevant issues, including the rent receipts have been duly dealt

with by the learned Appellate Rent Tribunal in the impugned

judgment of eviction of the petitioner-tenant, which calls for no

interference by this Court in the instant petitions.

6.3. In support of such submissions, learned counsel relied upon

the following judgments:-

[2023:RJ-JD:34273] (7 of 10) [CW-11533/2023]

(a) LR's of Kesa Ram & Ors. Vs Shrimali Brahmin Samaj Vikas

Samiti, Pali (S.B. Civil Second Appeal No. 2 of 2011, decided by a

Coordinate Bench of this Hon'ble Court on 05.05.2011);

(b) Mahesh Kumar Vs Rajendra Kumar Solanki & Ors. (S.B.C.W.P.

No. 424 of 2014, decided by a Coordinate Bench of this Hon'ble

Court on 06.02.2014);

(c) Hatim Ali Vs Smt. Nayan Kumari & Ors. (S.B.C.W.P. No. 1007

of 2014, decided by a Coordinate Bench of this Hon'ble Court on

04.03.2014); and

(d) Dinesh Kumar Vs Fayaz Ali & Anr. (S.B.C.W.P. No. 35 of 2017,

& other connected matters, decided by a Coordinate Bench of this

Hon'ble Court on 13.04.2017).

7. Heard learned counsel for the parties as well as perused the

record of the case alongwith the judgments cited at the Bar.

8. This Court observes that the respondent no.1 (Mohammed

Hussain)-landlord filed the aforementioned eviction petition before

the learned Rent Tribunal, against the petitioner-tenant (Noor

Mohammed). Thereafter, the respondent no.2-Rajasthan Board of

Muslim Waqf filed an application seeking its impleadment, which

was allowed by the learned Rent Tribunal, and accordingly, the

respondent no.2 was impleaded in the eviction case.

8.1. Thereafter, the learned Rent Tribunal vide the judgment &

certificate dated 03.11.2022 dismissed the aforementioned

eviction petition. Aggrieved by the same, the respondent no.1

preferred an appeal before the learned Appellate Rent Tribunal,

which was allowed vide the impugned judgment & certificate dated

[2023:RJ-JD:34273] (8 of 10) [CW-11533/2023]

21.02.2023, ordering eviction of the petitioner-tenant from the

disputed premises.

9. This Court further observes that the title regarding the

premises in question was to be decided under the Waqf Act, 1995

by the Wakf Tribunal and the respondent no.2 filed a suit (case no.

42/2006 -Rajasthan Board of Muslim Waqf Vs. Mohammad

Hussain & Ors.) before the Rajasthan Waqf Tribunal, Jaipur which

was decided on 20.07.2015; thereafter aggrieved from the said

order, the respondent no.1 preferred a writ petition (S.B.C.W.P.

No. 10753/2015- Mohammad Saleem Vs. Rajasthan Board of

Muslim Waqf) before this Hon'ble Court, which, as informed, is still

pending adjudication.

10. This Court also observes that the learned Appellate Rent

Tribunal clearly observed that in the present case, no adjudication

is required in regard to the title, rather a limited consideration is

required to ascertain whether there was any existing landlord-

tenant relationship between the respondent no.1 and the

petitioner. This Court further observes that the question relating to

title is pending before this Hon'ble Court, and therefore, the

learned Appellant Rent Tribunal passed the impugned order, as per

the provisions of the Act of 2001.

11. This Court also observes that the learned Appellate Rent

Tribunal gave its finding that as per the rent receipts from the

year 1976 to 2005, petitioner-Noor Mohammed put his signatures

on those receipts and the same were received by the respondent

no.1- Mohammed Hussain and his father, and therefore it is clear

from the record and evidence placed before the learned Appellate

[2023:RJ-JD:34273] (9 of 10) [CW-11533/2023]

Rent Tribunal, that there is an existing landlord and tenant

relationship between the respondent no.1- Mohammed Hussain

and petitioner- Noor Mohammed.

12. This Court further observes that petitioner-Noor Mohammad

is not paying the rent of the premises in question for last more

than 4 months, which is apparent from the impugned order, and

therefore, the impugned order passed by the learned Appellate

Rent Tribunal is justified in law.

13. This Court also observes that the Appellate Rent Tribunal has

only adjudicated the question of the landlord and tenant

relationship between the respondent no.1- Mohammed Hussain

and petitioner- Noor Mohammed, as per the Act of 2001 and the

same was established in the present case. This Court further

observes that the learned Appellate Rent Tribunal had no power to

going into the title and ownership of the premises in question, and

the question relating to title and ownership of the premises in

question is pending consideration in the aforementioned writ

petition before this Hon'ble Court.

14. In view of the above, this Court is of the opinion that the

learned Appellate Rent Tribunal has not committed any illegality in

passing the impugned order.

15. The judgments cited at the Bar on behalf of the petitioners

also do not render any assistance to their case.

16. Thus, in light of the aforesaid observations and as well as

looking into the factual matrix of the present case, this Court does

not find it a fit case so as to grant any relief to the petitioners in

the present petitions.

[2023:RJ-JD:34273] (10 of 10) [CW-11533/2023]

17. Consequently, the present petitions are dismissed. All

pending applications stand disposed of.

(DR. PUSHPENDRA SINGH BHATI), J.

310-SKant/-

Powered by TCPDF (www.tcpdf.org)