Gauhati High Court
Ali Mia And Umrunnessa Wakf Estate vs Abdus Salam Choudhury And Anr on 4 February, 2013
Equivalent citations: AIR 2013 GAUHATI 65, (2013) 124 ALLINDCAS 540 (GAU), 2013 (124) ALLINDCAS 540, (2013) 3 GAU LT 168, (2013) 2 CURCC 622
THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram &
Arunachal Pradesh)
RSA No. 148 of 2001
Ali Mia and Umrunnessa Wakf Estate
represented by the Mutawali
Abdul Hannan Choudhury,
S/O Lt. Abdul Jabbar Choudhury,
of village-Sunduara, PO-Kalain,
Dist.-Cachar.
......Appellant/Defendant.
-Versus-
1. Abdus Salam Choudhury,
S/O Lt. Abdul Jabbar Choudhury,
of village-Sunduara, PO-Kalain
Dist.-Cachar.
......Respondent/Plaintiff.
2. The Wakf Board of Assam, represented by its Secretary, Rajdhani Masjid Road, Dispur, Guwahati-6.
......Proforma Respondent.
Advocate(s) for the Appellant :
Mr. H.R.A. Choudhury (Sr. Adv.), Ms. R. Choudhury, Ms. A. Begum, Mr. F.U. Barbhuyan.
Advocate(s) for the Respondents :
Mr. M.H. Rajbarbhuiyan, Ms. R. Chetri, Ms. R. Devi.
BEFORE
THE HON'BLE MR. JUSTICE B.P. KATAKEY
Date of Hearing : 04.02.2013
Date of Judgment & Order : 4th February, 2013
RSA 148/2001 Page 1 of 1
JUDGMENT AND ORDER (Oral)
This appeal by the defendant is directed against the judgment and decree dated 09.08.2001 passed by the learned Civil Judge (Sr. Division) No.2, Cachar at Silchar, in Title Appeal No.12/1996, by affirming the judgment and decree dated 19.12.1995 (decree drawn on 12.02.1996) passed by the learned Munsiff No.2, Silchar in Title Suit No.188/1993, whereby and whereunder the suit of the plaintiff/respondent has been decreed.
2. The respondent No.1/plaintiff instituted the aforesaid suit against the present appellant as principal defendant and the respondent No.2 as the proforma defendant for passing a decree declaring that the plaintiff has the leasehold right over the land described in Schedule-1 to the plaint, that the plaintiff is an occupancy tenant under the defendant No.1 in respect of the suit land and also for confirmation of possession, apart from the permanent injunction, contending inter alia that the Mutawali of the defendant No.1, which plunged into the financial crisis in the year 1969-70, as per decision of the Wakf estate decided to leased out the suit land for agricultural purpose in favour of the plaintiff on 16.04.1970, after obtaining permission from the District Judge, Cachar, initially at the annual rent of Rs.200/-, which was, however, subsequently increased to Rs.250/- and since then as plaintiff has been possessing the suit land by paying the rent. According to the plaintiff since 16.04.1970 he has been in continuous possession of the suit land and thus has acquired the right of occupancy tenant under the provisions of Assam (Temporarily Settled Areas) Tenancy Act, 1971 (in RSA 148/2001 Page 2 of 2 short the 1971 Act). It is also the pleaded case of the plaintiff that though he enjoyed the peaceful possession of the suit land till first week of December, 1993, his brother Abdul Hannan Choudhury after becoming the Mutawali of the defendant Wakf estate started creating disturbance and disclosed his intension to dispossess the plaintiff from the suit land, which resulted in filing of the suit with the prayer for passing the decree noticed above.
3. The defendant No.1 contested the suit by filing written statement, admitting the execution of the lease deed dated 16.04.1970 on obtaining the permission from the learned District Judge, Cachar. It has, however, been pleaded that since the lease was for agricultural purpose and for a period of more than 3(three) years, the learned District Judge had no power to grant such permission, which can be granted only by the Wakf Board and hence the lease executed by the Mutawali is contrary to the provisions of Section 36A of the Wakf Act, 1954 (in short the 1954 Act), there being no permission from the Wakf Board, consequently no declaration as prayed for can be granted.
4. The Trial Court on the basis of the pleadings framed the following issues for determination:-
(i) Is there any cause of action for the suit?
(ii) Is the suit maintainable in the present manner and
form?
(iii) Is the suit is barred by limitation?
(iv) Whether the suit is bad for non-joinder of necessary
party?
(v) Whether the suit land is described correctly?
RSA 148/2001 Page 3 of 3
(vi) Whether the suit land is properly valued and whether this Court has jurisdiction to try this suit?
(vii) Whether the plaintiff has leasehold right, title, interest and possession over the suit land described in Schedule 1 of the plaint?
(viii) Whether the plaintiff is a occupancy tenant under defendant No.1 in respect of Schedule 1 land?
(ix) Whether the plaintiff is entitled to a decree as prayed for?
5. The plaintiff, in order to prove his case, examined 3(three) witnesses and proved a number of documents including lease deed dated 16.04.1970 (Ext.-3). The defendant No.1 also examined 1(one) witness and exhibited some documents. The defendant No.2, namely, the Wakf Board did not contest the suit either by filing written statement or by adducing any evidence or by cross-examining the witnesses examined by the plaintiff. The Trial Court has decreed the suit of the plaintiff declaring the leasehold right and also declaring him to be the occupancy tenant, he having been in possession of the suit property for more than 3(three) years, in view of Section 5 of the 1971 Act. It has further been held that though under Section 36A of the 1954 Act the permission from the Wakf Board for creation of a lease for a period of exceeding 3(three) years, in case of agricultural land, is required, such lease would not be void ab initio but would is voidable at the instance of the Wakf Board and since the Wakf Board has not initiated a proceeding for invalidation of the lease created by Mutawali and by that time the plaintiff has acquired the right of occupancy tenant under the provisions of 1971 Act, he is entitled to a decree prayed for. The Trial Court has also referred to two decisions, one of Patna High Court in RSA 148/2001 Page 4 of 4 Shah Mohammad Habib Saijada Nasin Vs. Moulvi Manzoor Ali & anr. reported in AIR 1966 PATNA 45 and the other of Allahabad High Court in Ram Dhani Vs. Janki Rai Singh & ors. reported in AIR 1972 ALLAHABAD 553.
6. Being aggrieved the defendant No.1 preferred Title Appeal No.12/1996, which has also been dismissed by the First Appellate Court, concurring with the finding recorded by the Trial Court. Hence the present appeal.
7. The appeal was admitted for hearing vide order dated 10.12.2002 on the following substantial questions of law:-
(i) Whether the plaintiff's suit is maintainable in view of the provisions of Section 36A of the Wakf Act, 1954 now Section 51 of the Wakf Act, 1995?
(ii) Whether the Courts below were correct and right in holding that the plaintiff had acquired the right of an occupancy tenant on the basis of permission granted by the learned District Judge for leading out the agricultural land of the appellant-defendant No.1 without permission and approval of the Board of Wakf in terms of Section 51 of the Wakf Act, 1995?
(iii) Whether the lease of Wakf property with the plaintiff for indefinite period is legal and valid in view of provisions of Section 56 of the Wakf Act, 1995?
8. I have heard Mr. H.R.A. Choudhury, learned Sr. counsel for the appellant and Mr. M.H. Rajbarbhuiyan, learned counsel appearing for the respondent No.1. None appears for the respondent No.2. RSA 148/2001 Page 5 of 5
9. Referring to Section 36A of the 1954 Act, it has been contended by the learned Sr. counsel for the appellant that since the lease for agricultural purpose for a period exceeding 3(three) years requires previous sanction of the Wakf Board, the lease executed by the Mutawali on 16.04.1970 (Ext.-3) is not valid, as by the said document lease for more than 3(three) years has been created in favour of the plaintiff and thus the plaintiff's occupancy right cannot be declared on the basis of such an illegal lease, when the sanction of the Wakf Board for creation of such lease has not been obtained. The learned Sr. counsel, therefore, submits that the judgments and decrees passed by the Courts below need to be interfered with and the plaintiff being not entitled to relief, his suit may be dismissed.
10. The learned counsel appearing for the respondent No.1, on the other hand, supporting the judgments and decrees passed by the Courts below, has submitted that though admittedly by Ext.-3 lease deed dated 16.04.1970 lease in respect of the suit land for agricultural purpose was created for a period exceeding 3(three) years without the sanction of the Wakf Board, since Section 36A recognizes the right of the lessor at least for first 3(three) years, the plaintiff's possession for first 3(three) years cannot be termed as illegal. It has also been submitted that the lease created in contravention of Section 36A is not void ab initio but voidable at the instance of the Wakf Board, who never initiated any action either for cancellation of the lease or for taking over the possession of the suit property and in the meantime as the plaintiff continued to be in possession for more than 3(three) years, he has acquired the right of occupancy tenant within the meaning of 1971 Act RSA 148/2001 Page 6 of 6 and as such there is no illegality in passing the impugned judgments and decrees by the Courts below. The learned counsel in this regard has placed reliance on the decisions of the Patna High Court in Shah Mohammad Habib Saijada Nasin(supra) and of Allahabad High Court in Ram Dhani (supra).
11. In the instant case, the creation of a lease by the Mutawali of defendant No.1 in favour of the plaintiff on 16.04.1970 (Ext.-3) with the permission of the District Judge, Cachar at Silchar, for agricultural purpose, for a period exceeding 3(three) years, is not in dispute. It is also not in dispute that the plaintiff by virtue of such lease created on 16.04.1970, in respect of the suit land, came to occupy the land and continued to be in possession till the date of filing of the suit in the year 1993. The plaintiff's continuous possession since 16.04.1970 is, therefore, not in dispute.
12. Section 36A of the 1954 Act, provisions of which would be applicable, in view of the date of creation of the lease i.e. 16.04.1970, though the said Act has subsequently been repealed, provides that no lease for a period exceeding 3(three) years in case of agricultural land, or for a period exceeding 1(one) year in case of non-agricultural land or building, shall be valid without the previous sanction of the Wakf Board. Section 36B of the said Act provides for recovery of Wakf property transferred in contravention of Section 36A by the Wakf Board by filing necessary application before the Collector. Sub-section (4) of Section 36B provides for an appeal before the District Judge against the order that may be passed by the Collector under Section 36B. RSA 148/2001 Page 7 of 7
13. Creation of the lease by Mutawali of defendant No.1 on 16.04.1970 in favour of the plaintiff being not in dispute, the plaintiff's possession at least initially for a period of 3(three) years cannot be held to be illegal even in the absence of the sanction from the Wakf Board, who came to possess the suit property on the basis of the lease deed (Ext.-3) dated 16.04.1970. Section 36A, as noticed above, stipulates that the lease, which is contrary to the provisions contained therein, would not be valid. Since the 1954 Act recognizes the power of the Mutawali to lease out the Wakf property at least for a period of 3(three) years, without the sanction of the Wakf Board, the plaintiff's right over the suit land for a period of 3(three) years from the date of creation of the lease would be the right of the non-occupancy tenant within the meaning of 1971 Act. To acquire the right of occupancy tenant under the provisions of the said Act the tenant must be in possession for a period of not less than 3(three) years. Admittedly, even after expiry of initial period of lease for 3(three) years neither the Mutawali nor the Wakf Board took any steps either for recovery of possession or for cancellation of the lease deed and on the other hand, the plaintiff being the tenant continued to possess the land as tenant by paying the annual rent fixed. In that manner the plaintiff continued the possession for more than 3(three) years.
14. Section 5 of 1971 Act provides for acquisition of the occupancy rights by a tenant, who has been continuously held the land for a period of not less than 3(three) years. In the instant case, it is not in dispute that the plaintiff is continuously possessing the suit land for RSA 148/2001 Page 8 of 8 more than 3(three) by paying the rent to the Mutawali of defendant No.1. Thus the plaintiff has acquired the right of occupancy tenant by virtue of his continuous possession pursuant to the lease deed dated 16.04.1970.
15. The contention of the learned Sr. counsel for the appellant that since by Ext.-3 lease deed dated 16.04.1970 the lease for a period of 13 years has been created without the sanction of Wakf Board, the plaintiff cannot claim the right of occupancy tenant, cannot be accepted in view of the fact that the plaintiff's lawful possession initially for a period of 3(three) years has been recognized by Mohammedan Law as well as by the 1954 Act and he continued to be in possession even thereafter without any steps being taken either by the Mutawali or by the Wakf Board to regain the possession and/or for cancellation of the lease deed.
16. The Patna High Court in Shah Mohammad Habib Saijada Nasin(supra) has held that though a lease for agricultural purpose for a period of more than 3(three) years without the sanction of the Wakf Board has been created, the same would be valid to the extent of the authority conferred by the Mohammedan Law i.e. for a period of 3(three) years from the date of the lease and hence the lessee's possession was lawful and not that of a trespasser. It has further been held that the right of occupancy tenant, under the relevant law, will be acquired by such lessee on completion of the required period of continuous possession, if in the meantime no proceeding has been initiated by the Wakf Board to take back the possession. RSA 148/2001 Page 9 of 9
17. The Allahabad High Court in Ram Dhani (supra) has held that the lease executed without the sanction of the Wakf Board is not void ab initio but voidable and unless and until such a lease is avoided by the person concerned, it is valid.
18. Having regard to the aforesaid discussion, I am of the view that the Courts below have rightly passed the judgments and decrees, which do not require any interference in appeal.
19. Hence the appeal is dismissed being devoid of any merit. No cost.
JUDGE Roy RSA 148/2001 Page 10 of 10