Mohammed Flamed Sharief vs Mohammed Khaled Sharief
2022 Latest Caselaw 5553 Tel

     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