Andhra HC (Pre-Telangana)
Mustafa Muslim Minority Welfare ... vs Mrs. Seetha Mahalakshmi, W/O. Late ... on 29 September, 2006
ORDER V. Eswaraiah, J.
1. Both the learned Counsel appearing for the petitioner as well as the respondents consented to take up the main case itself for disposal at the stage of disposal of the interlocutory applications.
2. Petitioner is the plaintiff in the suit O.S. No. 76 of 2006 filed before the Andhra Pradesh Wakf Tribunal, Hyderabad, on 10.05.2006 and the respondents 1 to 5 herein are the defendants and the sixth respondent herein is the Mutawalli of the Wakf lands. Initially the suit was filed by the petitioner - Mustafa Muslim Minority Welfare Association alone against respondents/defendants 1 to 5 for grant of perpetual injunction against them from interfering with the petitioner's peaceful possession and enjoyment of the suit schedule agricultural lands in S. No. 852/1 admeasuring Ac.70-46 cents situated in Nunna Village, Vijayawada Rural Mandal, Krishna District. The plaintiff obtained temporary injunction by order dated 11.05.2006 in I.A. No. 402 of 2006 in O.S. No. 76 of 2006 restraining the respondents 1 to 5 herein from causing any sort of interference with the plaintiff's possession and enjoyment of the suit schedule land till 01.06.2006. Thereafter, the plaintiff got impleaded the Andhra Pradesh Wakf Board as second plaintiff and one Syed Amirullah Hussain as sixth defendant by order dated 08.06.2006 in I.A. No. 425 of 2006 and I.A. No. 426 of 2006 respectively. However, the second plaintiff and the sixth defendant are not the parties in I.A. No. 402 of 2006. The Wakf Tribunal after considering the counters and hearing both the parties vacated the interim injunction granted on 11.05.2006 by dismissing the application in I.A. No. 402 of 2006 by order dated 20.06.2006. Aggrieved by the said order the first plaintiff alone filed this revision under Article 227 of the Constitution of India.
3. The parties herein are referred to as they were arrayed in I.A. No. 402 of 2006 before the Wakf Tribunal.
4. It is the case of the petitioner that he is the lawful tenant and possessor of the suit schedule agricultural lands having obtained a valid lease deed from the Andhra Pradesh Wakf Board for the period from 01.12.2005 to 30.11.2008 vide bare proceedings dated 09.08.2005. The suit property is a notified wakf property under the Andhra Pradesh Gazette being service Inam lands. Originally the Mutawalli of the said property Mr. Syed Amirullah Hussain leased out the said property to the petitioner vide a registered lease deed bearing No. 249/2004 dated 05.01.2004 for a period of one year commencing from 02.01.2004 to 01.01.2005 on an annual rent of Rs. 70,460/- and the rent was paid in advance. Before the lapse of the agreed lease period the said Mutawalli executed another registered lease deed in favour of the petitioner on 29.11.2004 extending the term of lease from 02.01.2005 to 01.12.2005 on an enhanced rent of Rs. 77,506/-. Before the expiry of the lease deed dated 29.11.2004 the petitioner approached the Wakf Board to extend the lease for further period of three years and the Wakf Board by proceedings dated 09.08.2005 extended the lease for a period of three years from 01.12.2005 to 30.11.2008 on an annual rent of Rs. 84,552/- and the petitioner paid one year rent in advance vide separate challans and took steps to execute a registered lease deed in his favour in respect of the said property. The said property is taken on lease for agricultural purpose and there is no dispute with regard to the terms of the lease and payment of rent between the petitioner and the Wakf Board.
5. It is stated that by virtue of the registered lease deed dated 29.11.2004 the petitioner got inducted into possession and enjoyment of the suit property by paying the agreed rents being a statutory tenant of the Wakf Board and doing agriculture over the suit property. The respondents having an evil eye to occupy the suit property and to succeed in their evil intentions they approached this Court by way of W.P. No. 12612 of 2005 making false claim over the suit property without making the petitioner herein as party to the said writ petition and in the said writ no favourable orders have been passed in their favour. But still they were illegally interfering with the peaceful possession and enjoyment of the suit property and when their interference became unbearable, the petitioner approached the Wakf Board and the Wakf Board issued proceedings dated 14.08.2006 requesting the Police Commissioner, Vijayawada to provide necessary assistance and security to the petitioner. When all the efforts of the respondents to grab the suit property proved futile they adopted a new strategy to throw the petitioner out of the suit property and started instigating the area Mandal Revenue Officer to take action against the petitioner. At the instance of the respondents the MRO tried to interfere with the petitioner's possession and enjoyment of the suit property in spite of the fact that the said property is a notified wakf property and the Revenue Department has nothing to do with the said property. The respondents resorted to illegal acts once again by involving anti-social elements. On 09.05.2006 respondents 2 to 4 accompanied by 12 henchmen came to the said property and tried to trespass into the said property for occupying the same illegally but the timely intervention of the neighbours and the workers of the petitioner's association made the respondents and their henchmen to leave the said property but while leaving the said property the respondents shouted that they will come again with more force and see how the petitioner will resist them from taking possession of the said property. The petitioner also approached the local police for help but the respondents being influenced persons managed the police. Therefore, the police refused to entertain the oral complaint of the petitioner on some lame ground that the disputed matter is civil in nature and without an order of the Competent Court they would not interfere. It is stated that the respondents are not having any right in the said property as the same is notified and leased out to the petitioner and the petitioner's tenancy is still subsisting and the acts of the respondents are illegal and arbitrary. Therefore, as long as the lease is subsisting their right to carry out agricultural operations for attaining the noble name and good objectives by paying huge rents to the Wakf Board, it may not be possible to resist the respondents continuously from interfering with the suit property, therefore, the said application has been filed for grant of interim injunction under Order 39 Rules 1 and 2 of the Code of Civil Procedure.
6. It is the case of the respondents 1 to 5 in the counter filed by the third respondent before the Tribunal that the respondents 2 to 4 are the sons of the first respondent and the fifth respondent is the grandmother of the respondents 2 to 4. It is stated that the petitioner filed O.S. No. 51 of 2005 on the file of the Wakf Tribunal for the same relief of permanent injunction and also sought temporary injunction in an interlocutory application and obtained exparte order of status quo. After filing of the written statement when the suit came up for trial the petitioner withdrew the suit and accordingly the said suit was dismissed on 14.03.2006. It is stated that the plaint averments in O.S. No. 51 of 2005 and the plaint averments in O.S. No. 76 of 2006 are similar and there is no change of circumstance to file the second suit. The suit has been filed in collusion with the Khazi and other enemies of the respondents. The respondents alone are in exclusive, peaceful and legal possession and enjoyment of the said property as on date of filing of the suit and even subsequent thereto. The boundaries mentioned in the plaint are also not correct and the same has been given with a fraudulent motive to misguide the Court. The plaint schedule property was under the tenancy of the ancestors of the respondents namely Yakareddi Mallareddi, by virtue of lease deed dated 14.05.1937 executed by the grandfather of the present Khazi viz. Syed Obedullah Saheb. After the death of Y. Mallareddi his heirs viz. Y. Subba Reddy - husband of the first respondent and the father of the respondents 2 to 4; and the fifth respondent were in continuous possession and enjoyment of the plaint schedule property. The litigation started in 1953 when the Khazi filed O.S. No. 91 of 1953 on the file of the Sub-Court, Vijayawada and with spurious lease documents in collusion with one Mr. Lingam Dasaradha Ramaiah, even though paper delivery was obtained by him he was not really put in possession and that thereafter he filed a suit O.S. No. 521 of 1967. Subsequently by virtue of compromise in L.P.A. No. 127 of 1972 before this Court the respondents' predecessor in right and interest viz. Y. Mallareddi was continued as permanent lessee with the rights of succession etc. A permanent lease deed executed between the present Khazi and Y. Mallareddi was duly registered as document No. 4487/71 in the officer of the Sub-Registrar, Vijayawada. After the death of Malla Reddy his son Subba Reddy - husband of the first respondent and father of the respondents 2 to 4, became entitled to the said property by virtue of Hindu Succession Act. The respondents 1 to 4 have succeeded to Y. Subba Reddy and the fifth respondent succeeded to Y. Mallareddi and his wife Subbamma. Thus the defendants and their predecessors in right and interest are in legal and exclusive possession since 1937 uninterruptedly by raising crops both wet and dry and also by paying necessary cist to the Government and lease amounts agreed upon and the amounts demanded by the Khazi under various receipts and that they were never in arrears of the lease amount or other amounts. The lease amount and other amount for the year 2004 - 05 was also paid through bank drafts and this Court also confirmed the possession and enjoyment of the predecessor of the respondents Y. Subba Reddy and the fifth respondent and her mother Subbamma, who is none other than the mother-in-law of the first respondent and grandmother of the respondents 2 to 4 in AAO. No. 242 of 1976 on 07.07.1997. The proceedings launched by Lingam Dasaradha Ramaiah in O.S. No. 521 of 1967, which was continued by his son - the first respondent in AAO. No. 242 of 1976, ended in favour of Y. Subba Reddy. It is stated that in the earlier suit O.S. No. 51 of 2005 filed by the petitioner, the respondents categorically denied the title and possession of the petitioner and despite the denial of title, filing of another suit for mere injunction is not maintainable. The other allegations made in the affidavit filed in support of the interim injunction were denied and stated that the respondents were in continuous possession and enjoyment of the suit property and the petitioner never entered into possession of the suit lands and the respondents were never dispossessed from the suit property at any point of time. The lease and the renewal of the lease in favour of the petitioner commencing from 01.12.2005 to 30.11.2008 is not known to the respondents and the petitioner was put to strict proof of the same. W.P. No. 12612 of 2005 filed by the respondents was disposed of by order of this Court dated 21.06.2005 directing the Wakf Board to dispose of the representation of the respondents within a period of four weeks from the date of receipt of the said order. Till the date of filing the counter on 25.05.2006 the Wakf Board has not passed any orders and therefore, the legal notice dated 04.03.2006 was got issued calling upon the Wakf Board to comply with the orders of this Court dated 21.06.2005. It is stated that the petitioner has not made out a prima facie case and the balance of convenience is in favour of the respondents. As a matter of fact, the documentary evidence filed by the respondents would clearly establish their prima facie possession and enjoyment over the suit schedule property, therefore, the balance of convenience is in favour of the respondents alone. As the interference of the petitioner with the respondents' possession cannot be compensated in terms of money, which will lead to multiplicity of proceedings, the injunction order dated 11.05.2006 has to be vacated. Along with the counter the respondents filed as many as 40 documents right from 30.12.1975 i.e. certified copy of terms of lease executed by the then Kazi - Syed Amirullah Hussaini in favour of Y. Malla Reddy and the compromise decree in L.P.A. No. 127 of 1972; the order passed in A.A.O. No. 242 of 1976; certified copies of the receipts issued by the Kazi in favour of Subba Reddy in 1992; cist receipts from 09.04.2000 to 05.01.2005; other receipts issued towards the lease amount by the sixth defendant - Kazi; the earlier copy of the plaint in O.S. No. 51 of 2005 and the written statement filed in the said suit. The sixth respondent - Mutawalli of the suit property filed counter in I.A. No. 402 of 2006 stating that the suit property is Wakf property and he had originally leased out the suit property to the petitioner for one year vide registered lease deed from 02.01.2004 on 01.01.2005 and thereafter another registered lease deed was executed before the expiry of the first lease deed on repeated and persistent pressure of the petitioner on 29.10.2004 for a further period of 11 months from 02.01.2005 to 01.12.2005. He did not execute any document thereafter in favour of the petitioner. There was a specific and admitted understanding between the petitioner/plaintiff and the sixth respondent - Kazi/Mutawalli to the effect that the petitioner shall hand over the suit property in vacant possession without any prior notice by him vide Clause (9) of the second lease deed dated 29.10.2004 and the plaintiff was not in possession after expiry of the lease on 01.12.2005 in view of Clause 9 of the lease deed.
7. It is further stated that the petitioner/plaintiff approached the second plaintiff - Wakf Board to extend the lease against the interest of Mutawalli and he being the Mutawalli, the suit property was neither intimated nor put on notice by the plaintiff or the Wakf Board as regards the extension of the lease for three years. He is legally entitled to put on notice in the capacity of Mutawalli of the Wakf property. The action of the Wakf Board in vernacular parlance "Atta Sommu Alludu Daanam" meaning thereby donating the property of mother-in-law by son-in-law. The Wakf Board cannot give any property as per its whims and fancies. The inam property was sought to be leased out behind his back so as to deprive him of his legitimate right and against his interest. He alone in the capacity of Mutawalli can execute or register the lease deed of the suit property. The Wakf Board is only a statutory authority and has no legal right to execute any registered document in respect of the suit property. The dispute is between him and the plaintiff as regards the lease amount, the period of lease etc., and the Wakf Board has nothing to do with the dispute in the instant case and even, if any, the Board comes into picture later in the evening only if he in the capacity of Mutawalli executes a lease deed for more than one year or for less than three years under Section 56(2) of the Wakf Act.
8. It is further stated that the petitioner is not a statutory tenant of the Board when the property is admittedly under the control of Mutawalli. He is only the lessor and the Board is enjoying the rents against his monetary and usufruct interest. The tenancy of the petitioner expired on 01.12.1005 in view of Clause 9 of the document and in view of Clause 5 of the said lease deed no tenancy exists between him and the petitioner. The Board is not Mutawalli of the suit property and the petitioner is not the statutory tenant of the Board. It is further stated that the petitioner is aware of the fact that the suit property in possession of persons in whose favour the lease deeds were executed by him earlier for longer period are now void in view of Section 56(1) of the Wakf Act. The possession of the defendants is illegal in view of Section 56(1) of the Wakf Act. A perusal of the lease deeds filed by the petitioner goes to show that there is no clause as regards the delivery of possession of the suit property to petitioner/plaintiff. In view of the persistent pressure of the petitioner he executed the lease deeds with all the facts and circumstances within the knowledge of the petitioner and he had considerable influence in the Board and that he can take all steps to take possession of the suit property from the illegal occupants. This fact is fortified by the issuance of proceedings dated 14.02.2006 by the Board to the Police Commissioner, Vijayawada and it has been stated by the petitioner himself in Para-6 of the affidavit. It is further stated that the entire exercise undertaken by the petitioner reveals that he wants to get inducted himself in the suit property with the assistance of the Board and other authorities. The petitioner is running from pillar to post to take possession of the suit property. Accordingly he has requested the tribunal to dismiss the I.A. No. 402 of 2006 with exemplary costs.
9. The petitioner also filed rejoinder on 01.06.2006 stating that the suit is maintainable and the Tribunal has got jurisdiction to entertain the suit and the property is a registered notified wakf property as per A.P. Gazette Part II dated 28.06.1962 and it is a Khazi's Service Inam Land, as such, as per Wakf Act, 1995, the Wakf Tribunal alone has got jurisdiction to entertain the suit. It is stated that the filing and withdrawal of the earlier suit O.S. No. 51 of 2005 does not preclude the petitioner from filing fresh suit in respect of the suit property as the said suit was filed on a different cause of action with that of the present suit in the changed circumstances, to protect his lawful possession over the suit property from the illegal acts of the respondents. In O.S. No. 51 of 2005 the Court granted status quo orders but subsequently due to interference of elders of the muslim community of the area and upon their assurance that they would settle the matter so as to solve the dispute once for all in the interest of the wakf institution and to maintain peace and brotherhood in the area and upon the assurances of the elders the petitioner had withdrawn the suit. In spite of his withdrawing the suit, no cogent steps have been taken by the elders due to political pressure from the respondents and officials to stop the illegal interference of respondents in the possession of the petitioner over the suit property and as the respondents increased their illegal attempts to dispossess the petitioner from the suit property and in the changed circumstances, as fresh cause of action arose, the petitioner filed the suit which is permissible and proper as per law. The allegation of the respondents that they were in possession and enjoyment of the suit property is false and baseless and the respondents are to put to strict proof of the said contention. The boundaries shown are correct. The alleged lease transaction between the ancestors of the respondents and the said Khazi is void and illegal and the so- called compromise decree is also collusive one entered into to grab the wakf property without any permission from the Wakf Board as required. As per Section 56 of Wakf Act a lease or sub lease for any period exceeding three years for immovable property which is a wakf property, is restricted and it is void and of no effect, unless it is made with the previous sanction of the Board. The alleged lease of 1937 in favour of the respondents' ancestors is not having any sanction of the Board at any point of time hence the alleged lease transaction is void and basing on a void transaction the respondents claim over the suit property is false and baseless. The Board was not a party to the alleged compromise entered between the ancestors of the respondents and Khazi. As per Section 93 of the Wakf Act, there is bar to compromise suits by or against mutawallis over the wakf properties. Therefore, the alleged collusive compromise decree obtained by the respondents is not binding upon the Wakf Board or upon the petitioner. The suit property is wakf property and the respondents have failed to procure any document or ratify their alleged documents with Board as required, all the acts of respondents are illegal.
10. Sr. M. Chandrashekara Rao, learned senior counsel appearing on behalf of the petitioner submits that a lease deed was executed on 05.01.2004 in respect of the suit property between the Khazi and the petitioner and as per the lease deed the suit property belongs to Khazi Service Inam Lands and the sixth defendant in the suit is the Mutawalli, who is entitled to lease out the said property by virtue of he being notified Khazi in A.P. Gazette Part II dated 02.07.1959 for the year 2004-2005 at the rent of Rs. 1,000/- per acre per annum totaling to Rs. 70,460/- for Ac.70-46 cents. The lease amount for the schedule property has to be paid in advance of the agricultural year under proper receipt to be obtained from the Mutawalli.
11. The learned senior counsel further submits that thereafter another lease deed dated 29.10.2004 was executed stating that the lessor has already leased out the schedule lands for the agriculture year 2004-2005 i.e. 02.01.2004 to 01.01.2005 and got registered the lease deed on 05.01.2004 and as per the terms and conditions of the said lease deed the schedule property was in the possession of the lessee, who cultivated the land by Wet Paddy etc., and as the crop is in the middle stage, and as the lease under the above said registered lease deed expires on 01.01.2005, the lessee was in need for a further period of 11 months of lease to procure the existing crop. As per the request of the lessee, the lessor agreed to lease the schedule land for a further period of 11 months i.e. from 02.01.2005 to 01.12.2005 at the rate of Rs. 1,200/- per acre per annum totaling to Rs. 77,506/- for Ac.70-46 cents. The lessee agreed to the above lease amount and agreed to pay the same on 02.01.2005 to the lessor under proper receipt to be obtained from him. As per Clause 9 of the second lease deed after the expiry of the lease period the lessee has to handover the schedule land in vacant position to the lessor without any prior notice but before the expiry of the lease term as per lease deed dated 29.10.2004 the petitioner approached the Andhra Pradesh State Wakf Board, to extend the lease for a further period of three years.
12. The Wakf Board by proceedings dated 09.08.2005 considered the request of the petitioner and leased out the suit property in favour of the petitioner for a further period of three years from 01.12.2005 to 30.11.2008 @ Rs. 1,200/- per acre per annum totaling to Rs. 84,552/- and the lessee agreed to pay the said lease amount in advance for the period from 01.12.2005 to 30.11.2008 and to execute the lease deed by registering in the Office of the Sub-Registrar. The lessee has remitted an amount of Rs. 70,460/- through challan No. 641 dated 19.07.2005 towards lease amount for a period of one year and the remaining amount of Rs. 14,092/- to be remitted through the challan in the Board's treasury immediately after the issuance of the proceedings. Accordingly, the said service inam land of Khazi Kondapalli was allotted to the petitioner on lease basis for the purpose of agriculture for a period of three years and the lessee should get the lease deed registered on the sufficient stamp paper.
13. The learned senior counsel further submits that the petitioner entered into possession of the suit lands by virtue of lease deed dated 05.01.2004 and he is in continuous possession and enjoyment of the same carrying out agricultural operations. The contention of the respondents 1 to 5 that the predecessors in right and interest of the respondents were lessees from 1937 onwards is incorrect and untrue and in fact, the suit filed by the Khazi in O.S. No. 91 of 1953 was decreed and the respondents' predecessors in right and interest were evicted and the suit property was leased out by the said Khazi to Lingam Dasaratha Ramaiah on 25.10.1962 and Lingam Dasaratha Ramaiah alone was in possession and after his death his son was in possession. After eviction of the respondents there is no evidence to show that the respondents were re-inducted into possession, therefore, the respondents were neither in possession nor can they claim any rights under the Andhra Tenancy Act.
14. The learned senior counsel further submits that under Section 36A of the Wakf Act, 1954 any lease of the agricultural land granted for more than three years without previous sanction of Board is null and void. Under Section 36A of the Wakf Act, 1954 the lease for a period exceeding three in the case of agricultural land shall be invalid without the previous sanction of the Board and similar is the provision of the Section 56 of the Wakf Act, 1995 wherein any lease exceeding three years of any immovable property shall be void without previous sanction of the Board. He further submits that compromise decree in LPA. No. 127 of 1972 dated 26.07.1972 is invalid and void as there cannot be any permanent tenancy in perpetuity in favour of Yerkareddi Malla Reddy the predecessor in interest and right of the respondents and future generations of the suit land at a rent of Rs. 250/- per annum for the entire land. No doubt, in view of the said order the Mutawalli/Khazi is not entitled to interfere with the cultivation of the respondents except collecting the rents and if the respondents raised wet crops in any extent of the suit land in any year, they shall pay proportionately double the said rent only on the extent of which the wet crops is raised. It is further stated that the suit filed by Lingam Dasaratha Ramaiah in O.S. No. 521 of 1967 to protect his possession was decreed and delivery of the land in favour of Lingam Dasaratha Ramaiah is not paper delivery and he was in continuous possession and enjoyment and there is no evidence to show that after the death of Dasaratha Ramaiah, the respondents have resumed the possession of the suit lands. During the pendency of the suit proceedings between the Khazi and the respondents the lease was granted in favour of Dasaratha Ramaiah but there is no evidence to show that Dasaratha Ramaiah was not in possession of the suit lands.
15. The learned senior counsel further stated that as per judgment of this Court in A.P. Wakf Board, Hyderabad v. G. Nagi Reddi 1982 (1) APLJ 79 any lease granted under Rule 5 of the A.P. Wakf Rules, 1956 and Section 36A of the Wakf Act, 1954 the Mutawalli or the person in Management of the wakf properties is competent to enter into lease for a period of three years only and the lease contemplated for the period exceeding three years without the sanction of the Board is null and void. The proviso to Rule 5 of the Rules unequivocally lays down that in a case where the lease is executed by Mutawalli for a period of three years within the compass of the power conferred on him but if there is a provision for renewals for a further term or terms which ultimately exceeds three years the lease is null and void notwithstanding the fact that lease as such is for a period not exceeding three years. The lease deeds executed subsequent to insertion of Rule 5 of A.P. Wakf Rules are null and void. As the lease deeds are void the lessee cannot be treated as a cultivating tenant within the meaning of Section 2(c) of the A.P. Tenancy Act and hence they are not entitled to the protection under the Act. Therefore, the Mutawalli is entitled to recover possession of the suit property. He further submits that the petitioner after taking possession of the suit property purchased the seeds on 26.06.2006 and sowed the same. The Adangals for the year 2006-2007 obtained on 06.08.2006 go to show that the petitioner raised the crop of Jonna, Sadda, Zeelakarra, vari and ulvalu and he was cultivating the lands. Only when the respondents interfered the petitioner filed complaint before the SHO, Payakapuram on 19.07.2006 and police also registered a case against the respondents. It is further stated that on a report made by the petitioner to the Wakf Board, the Wakf Board also addressed a letter on 14.02.2006 to the Commissioner of Police, Vijayawada to provide necessary assistance and security to the petitioner as the lease was granted in favour of the petitioner for a period of three years.
16. On the other hand, Sri M.S. Ramachandra Rao, learned Counsel appearing for the respondents 1 to 5 submits that originally the predecessor in right and interest of the respondents was granted lease in 1937 and thereafter pursuant to the compromise decree in LPA. No. 127 of 1972 lease deed was executed and the respondents have been regularly paying the yearly lease amount of Rs. 250/- and whenever they raised wet crops additional amounts were being paid. As per the compromise decree in LPA. No. 127 of 1972 the predecessor in right and interest of the respondents was recognized as a permanent tenant in perpetuity and future generation of the suit land at a rent of Rs. 250/- per annum with a condition that the tenants shall pay proportionately double amount only on the extent on which the wet crops are raised. Though it was recorded in O.S. No. 91 of 1953 that Mutawalli took the possession and the lease was set up in favour of Lingam Dasaratha Ramaiah, who filed O.S. No. 521 of 1967, but the respondents' predecessor in the LPA alone was held to be entitled to enjoy the suit land with absolute rights as the lease set up in favour of Lingam Dasaratha Ramaiah was not valid and as per the compromise the respondents have deposited the amounts stipulated therein and there is no dispute with regard to lease amounts, which were already paid by the respondents. After the death of Lingam Dasaratha Ramaiah his son Lingam Hemasundara Rao filed E.A. No. 523 of 1973 to grant stay of recording delivery of certain properties and also to declare the delivery of suit lands by the amin in favour of respondents as void. The said application was ordered by the executing Court declaring that the delivery of the scheduled property in favour of Lingam Dasaratha Ramaiah of the petitioner was only a paper delivery and that the same was not valid and binding on the respondents.
17. The contention of the learned Senior Counsel for the petitioner that the possession was continued with Lingam Dasaratha Ramaiah and thereafter with his son and his legal representatives and that the respondents were never inducted into possession of the suit lands after the lease was granted in favour of Lingam Dasaratha Ramaiah cannot be accepted in view of the judgment of this Court in AAO. No. 242 of 1976 dated 27.07.1977 wherein it was held that the delivery of the suit lands in favour of Lingam Dasaratha Ramaiah and his son is only a paper delivery and the same is not valid and binding on Y. Subba Reddi - the father of the respondents 2 to 4. In the said judgment it was clearly noticed that the Khazi leased out the said lands in question in favour of the predecessor in right and interest of the respondents in 1937 and the said Khazi filed O.S. No. 91 of 1953 against the lessee and a decree was passed in favour of the Khazi. The Khazi filed E.P. No. 166 of 1962 for eviction of the lessee and obtained delivery of possession through Court on 18.09.1962 and soon after the delivery the Khazi executed a registered lease deed in favour of Lingam Dasaratha Ramaiah on 25.10.1962 for a period of five years, which expired on 25.10.1967. In the meanwhile the predecessor of the respondents filed LPA. No. 127 of 1972 on the file of this Court and the same was allowed as per compromise decree dated 26.07.1972. Pursuant to which the lessee became the permanent lessee and accordingly sought for delivery of the possession in his favour and the warrant of delivery was issued in favour of the amin of the Court and the delivery was also effected on 14.11.1972.
18. Based on the contentions of the son of the Lingam Dasaratha Ramaiah that he was a protected tenant; that he was entitled to continue tenancy and the delivery of possession in favour of the father of the respondents on 14.02.1972 is only paper delivery, this Court framed a point as to whether delivery of the suit schedule property to the first respondent by the Court amin is true and valid. This Court held that the said Subba Reddi - the father of the respondents raised tobacco crop and after the death of Lingam Dasaratha Ramaiah, his son never invoked the provisions of the Tenancy Act exercising his option and notifying the landlord that he would continue the tenancy on the same terms as his father and therefore, he could not be treated as a cultivating tenant and his contention has no force and is not tenable. However, the lease granted in favour of Lingam Dasaratha Ramaiah was only pendente lite and the compromise decree in LPA. No. 127 of 1972 entered into between the Khazi and the original tenant was not collusive compromise. Therefore, the legal right created in favour of Lingam Dasaratha Ramaiah was only subject to the proceedings in LPA. No. 127 of 1972. It is for the son of Lingam Dasaratha Ramaiah to establish in a separate suit that the decree in LPA was collusive and fraudulent. The matter was being fought out from 1953 to 1972 and it is impossible to believe that the said Lingam Dasaratha Ramaiah had not known about the litigation as his statutory rights have been affected and more so he has not chosen to implead himself as a party and he had chosen to keep quiet all along and his son also had not taken any steps to file a separate suit to prove the collusive and fraudulent nature of the compromise in LPA. No. 127 of 1972. Therefore, the son of Lingam Dasaratha Ramaiah no longer had any interest in the properties and his position is no better than that of a trespasser and he has no right of locus standi to intervene in proceedings as between the judgment-debtor and the decree-holder.
19. The learned Judge in the said AAO clearly recorded as follows:
It is accepted by me that there was delivery of the property pursuant to the compromise decree in LPA. No. 127 of 1972.
20. Thus, this Court accepted the delivery of possession given in favour of Subba Reddi on 14.07.1972 and as against the said contention it cannot be said that the father of Subba Reddi and thereafter the respondents were not in possession of the suit lands from 14.07.1972.
21. To prove the continuous possession the respondents filed lease deed dated 30.12.1971 and receipt issued by Khazi dated 01.07.1982 for a sum of Rs. 1,00,000/- being the balance principal amount and the interest as per the compromise decree in O.S. No. 91 of 1953 and CMP. No. 6687 of 1972 in full satisfaction of the decree and it is stated that the Khazi and his successors will always be bound by the said compromise decree. Another receipt dated 01.07.1982 was also filed issued by the Khazi on receipt of Rs. 500/- towards the lease amount for the year 1982-83. As per the compromise decree the lessee alone has to pay the cist and accordingly various cist receipts dated 09.04.2002 and 31.01.2003 have been filed in proof of the contention that the respondents have been in possession of the suit lands.
22. The respondents have also filed cist receipts dated 27.02.2004 and 05.01.2005. In addition to the cist receipts the respondents have also filed the receipts issued by the Mutawalli/Khazi for a sum of Rs. 1,000/- towards the lease amount for the year 2001-2002 and another amount of Rs. 1,000/- and Rs. 19,000/- have been paid for the year 2001-2002 vide receipt dated 29.01.2002. The amounts of Rs. 1,000/- and Rs. 19,000/- were also paid on 17.20.2003 towards the lease amount for the year 2002-2003. Similarly for the year 2003-2004 also the amounts of Rs. 1,000/- and Rs. 19,000/- have been paid on 16.03.2004. The respondents have also paid land revenue on 31.12.2005 for various extents of the land relating to the suit schedule property.
23. It is also pertinent to note that the petitioner/plaintiff in O.S. No. 51 of 2005 after filing the written statement withdrew the suit without any leave of the Court to file a fresh suit, but the learned Counsel for the petitioner submits that the suit was withdrawn with the leave of the Court to file fresh suit. Whether the leave was granted or not and whether the dismissal of the said suit operates as resjudicata in filing the subsequent suit in O.S. No. 76 of 2006 are matters to be decided in the main suit itself.
24. The question that arises for consideration is as to whether the plaintiff was in possession as on the date of filing of the suit and obtained exparte interim injunction.
25. Admittedly as per the lease deed dated 05.01.2004 there is no clause of delivering the possession and the lease deed was ingeniously got executed by the Mutawalli in favour of the petitioner and even the second lease deed also does not specifically say when the possession was given to him but stated that as per the terms and conditions of the first lease deed the petitioner was in possession. Thus, both the lease deeds do not say that the delivery of possession was given in favour of the petitioner. Admittedly, the petitioner filed suit O.S. No. 76 of 2006 on 10.05.2006 and thereafter certain documents i.e. Adangals for the year 2006-2007 issued on 06.08.2006 were filed, which is long after the filing of the suit, therefore, it cannot be said that the petitioner raised the said crops before filing of the suit. Even the receipt showing the purchase of seeds dated 26.06.2006 much longer after filing of the suit. When there was a perpetual lease granted in favour of the respondents; without mentioning anything about the previous litigation between the Khazi and the respondents in respect of subsisting lease and without terminating the same, I am of the opinion that the grant of lease by the Khazi in favour of the petitioner without delivering any possession prima facie show that the delivery of possession has not been given in favour of the petitioner. When any lessee is in illegal possession it is always open for Khazi or the Wakf Board to terminate the lease or file a suit for recovery of possession. In the instant case, neither the Mutawalli nor the Wakf Board has initiated any action against the respondents who have been in possession of the suit property since long time. Whether the provisions of the Andhra Tenancy Act provides any right in respect of the agricultural lands even in respect of the wakf properties in favour of the respondents is yet to be decided in separate proceedings.
26. Whether the recording of the compromise decree by the Division Bench of this Court between Y. Malla Reddy - predecessor in right and interest of the respondents and Syed Amirullah Hussain - Khazi/Mutawalli, gives them any protection under the Andhra Tenancy Act and whether the said lease of permanent tenancy is in violation of the Wakf Act are all the matters between the Mutawalli, the lessees and the Wakf Board. Admittedly, no legal action has been initiated either by the Mutawalli or by the Wakf Board against the alleged perpetual lease in favour of the respondents and there is no proceeding in proof of the contention of the petitioner/plaintiff that the respondents were dispossessed from the suit lands in question when the first and second lease deeds were granted in favour of the plaintiff by the Mutawalli and the pursuant orders of the Wakf Board renewing the lease for a further period of three years. Therefore, in the absence of any proof that the respondents were dispossessed from the suit lands and that the petitioner was inducted into possession of the suit lands pursuant to the lease deeds it cannot be said that the plaintiff was in possession of the suit lands as on the date of filing of the suit and the subsequent filing of the Adangals and the complaint made before police are of no avail to believe the possession of the plaintiff as on the date of filing of the suit.
27. Whether the perpetual lease in favour of the respondents is illegal and contrary to the Wakf Act is a matter to be decided in the appropriate proceedings or in the main suit by the Wakf Tribunal.
28. In view of the aforesaid discussion, I am of the opinion that there is no prima facie evidence that goes to show that the plaintiff was not in possession of the suit lands as on the date of filing of the suit. Therefore, the person who is not in possession of the property is not entitled for temporary injunction. The plaintiff cannot succeed on the weakness of the defendants and the plaintiff has to establish a prima case of his possession entitling him for grant of temporary injunction.
29. However, the property being the Wakf property and the ownership vests in the Almighty Authority God, the learned Counsel for the respondents submits that the respondents are prepared to pay yearly lease amount of Rs. 1,00,000/- for the suit lands. It is further stated that as the Khazi misappropriated certain amounts the Government granted permission to prosecute the Khazi - Sri Syed Amirullah Hussain, Government Khazi, of Kodapalli Village, Vijayawada City, Krishna District under Section 197 Code of Criminal Procedure in G.O.Rt. No. 207 dated 04.08.2006 and the Government vide memo dated 12.09.2006 requested the Collector and District Magistrate, Krishna District to furnish a suitable name for temporary additional charge arrangements by appointing one senior eligible Muslim person from the local area, who is well acquainted with the subject to perform the duties and functions of Khazi of Kondapally Village, Vijayawada City, Krishna District.
30. I am of the opinion that whoever would be appointed as temporary Khazi/Mutawalli it is the duty of the respondents to continuously deposit the said lease amounts. This Court in a revision petition cannot decide the legality and validity of the perpetual lease granted in favour of the respondents predecessor in right and interest as it is for the Wakf Board or Mutawalli to take appropriate action to declare the said perpetual lease as null, void and contrary to Wakf Act. Therefore, the only question that arises is as to whether the petitioner, who is claiming possession, is entitled to be granted temporary injunction pending disposal of the suit.
31. For the reasons stated above, I am of the opinion that the petitioner has not established his possession as on the date of filing of the suit as it is difficult to visualize and presume that the longstanding lessees have been dispossessed when the first lease was granted in favour of the petitioner on 05.01.2004 and thereafter the second lease and pursuant to the Wakf Board order dated 09.03.2005. As against the documentary evidence filed by the respondents, I am of the opinion that the documentary evidence filed by the petitioner is only subsequent to the filing of the suit, which cannot be taken into account to hold that the petitioner was in possession as on the date of filing of the suit. In that view of the matter, the Wakf Tribunal rightly vacated the interim injunction granted in favour of the petitioner by the impugned order.
32. The civil revision petition is accordingly dismissed. However, in view of the undertaking given by the learned Counsel for the respondents, the respondents shall pay the lease amount of Rs. 1,00,000/- per year for the year commencing from 01.01.2005.
33. The respondents shall on or before 31.10.2006 deposit the lease amounts payable from 01.01.2005 to 31.12.2005 and from 01.01.2006 to 31.12.2006 amounting to Rs. 2,00,000/-. In default of payment, it is open for the AP Wakf Board or the Mutawalli to recover the same from the respondents. It is also open for the Mutawalli as well as the AP Wakf Board to take any appropriate action in accordance with law against the respondents irrespective of the pendency of the said suit. There shall be no order as to costs.