Allahabad High Court
Atul Rastogi Amd 2 Others vs Mohammad Salim And 5 Others on 18 April, 2018
Equivalent citations: AIRONLINE 2018 ALL 726
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?AFR Court No. - 26 Case :- MATTERS UNDER ARTICLE 227 No. - 2348 of 2018 Petitioner :- Atul Rastogi Amd 2 Others Respondent :- Mohammad Salim And 5 Others Counsel for Petitioner :- Arvind Srivastava Iii Counsel for Respondent :- Sunil Kumar Singh Hon'ble Mrs. Sangeeta Chandra,J.
(ORAL) This petition under Article 227 of the Constitution of India has been filed by the petitioners-tenants challenging the order passed by the Prescribed Authority dated 11.05.2017 in P.A. Case No. 4 of 2014 as well as the judgment and order dated 09.01.2018 passed by the learned Additional District Judge, Court No. 1, Amroha in Rent Control Appeal No. 5 of 2017.
Learned counsel for the petitioners submits that the grand-father of the petitioners, namely, Vishambhar Nath had taken a shop No. 4 from the Muttawalli of the waqf of late Latif Ahmed on 04.05.1939. Thereafter, the father of the petitioner Nos. 1 and 2 was the tenant till his death and the petitioners became the tenants of the shop in question. There was never any default in payment of rent. The original owner of the property in question was Haji Abdul Latif, son of Haji Khuda Baksh, who had seven sons. Late Haji Abdul Latif created a waqf of his entire property during his life time including the shop in question bearing No. 4. This Waqf Deed was duly registered before the U.P. Sunni Central Waqf Board, Lucknow on 14.01.1992. After the death of Haji Abdul Latif, the elder son Abdul Hameed became Muttawalli of this waqf, which was waqf Al-Alaulad. Abdul Rasheed, the brother of Abdul Hameed fraudulently executed a Sale Deed in favour of his son, namely, Abdul Rafeeq of the shop in question on 29.04.1969. There was some dispute regarding the appointment of Muttawalli eventually Imamuddin became the Muttawalli appointed by the Waqf Board. Abdul Rasheed son of Haji Abdul Latif was never recognized as Muttawalli by the Waqf Board and also since the property belonged to the Waqf and no prior permission was taken from the Waqf Board, he had no authority to execute a Sale Deed of the shop in question in favour of his son Abdul Rafeeq on 29.04.1969. Abdul Rafeeq thereafter executed another Sale Deed on 05.08.2010 of the same shop, of which the petitioners are tenants, in favour of five person, who have been arrayed as respondent Nos. 1 to 5. Since, the shop in question was a Waqf property and it was sold out without permission of the Waqf Board, the Sale Deeds were null and void. The landlords were trying for long time to evict the petitioners, and Abdul Rafeeq, the vendor of Sale Deed dated 05.08.2010 had filed a suit for eviction, namely, Suit No. 4 of 2008 claiming himself to be the Muttawalli of Waqf Allahtala Malik Waqf Al-Alaulad against the father of the petitioner Nos. 1 and 2, Ishwar Chandra. This suit was dismissed for non prosecution on 03.05.2014. Another Suit No. 2 of 2008 was filed by Imamuddin, the appointed Muttawalli of Waqf Allahtala Malik Waqf Al-Alaulad against Ishwar Chandra again for payment of rent and eviction, which was also dismissed in default on 27.08.2016. Admittedly, the shop in question belongs to Waqf, and therefore, no Release Application could have been entertained under section 21 (1)(a) of the U.P. Act No. 13 of 1972, and when such Release Application was filed by the respondents, the petitioners took specific objection to the maintainability of the Release Application on grounds of it being a Waqf property in his written statement. The learned Trial Court framed issues and decided the issues whether the shop in question was a Waqf property or not by its order dated 27.09.2016. It wrongly relied upon the boundaries mentioned of the shop Nos. 3 and 4 in the Waqf Deed of 1929 and compared the same to the boundaries mentioned of the shop No. 4 in Release Application, and did not take into account the intervening period of almost 90 years, wherein there were several changes on the spot. The learned Trial Court found that it could not be said that the shop in question was a Waqf property. Later on, the Trial Court allowed the Release Application by its order dated 11.05.2017. Aggrieved against the orders dated 27.09.2016 and 11.05.2017, Rent Control Appeal No. 5 of 2017 was filed. The learned Appellate Court has arbitrarily rejected the appeal on 09.01.2018. Hence, this petition has been filed.
Learned counsel for the petitioner has placed reliance upon a judgment rendered by the Hon'ble Supreme Court in Sayyed Ali vs Andhra Pradesh Wakf Board, Hyderabad reported in 1998 (2) SCC 642 to submit that a Waqf is a permanent dedication of property for the purposes recognised by Muslim law as pious, religious or charitable and the property having been found as Wakf would always retain its character as Wakf - "Once a Wakf always a Wakf".
Mr. W.H. Khan, learned Senior Advocate appearing for the respondents, however, has disputed the contention of the learned counsel for the petitioners tenants by referring to several passages of the order passed by the learned Trial Court and of the Appellate Court. He has argued that Suit No. 4 of 2008 or Suit No. 2 of 2008 filed by Abdul Rafeeq and Imamuddin as Muttawalli of the Waqf for eviction of tenants were both dismissed in default. No finding was recorded by the learned Trial Court regarding whether the property in question was a Waqf or not, and therefore, dismissal in default of the said suit would not act as res judicata amongst the parties.
Mr. W.H. Khan, learned Senior Advocate has also referred to the learned Trial Court finding that the Waqf property was separate from the shop in question. With regard to the shop in the same property, the petitioners had also approached the Sunni Central Waqf Board by moving an application that the shop in question has been sold out without prior permission of the Sunni Central Waqf Board, and when his application was not considered, he filed Writ Petition No. 11013 (MB) of 2011 (Ishwar Chandra vs Chairman, U.P. Sunni Central Waqf Board, Lucknow). This petition was disposed of by this Court at Lucknow on 09.11.2011 with a direction to the Sunni Central Waqf Board to look into the matter and decide the same on merits. The Sunni Central Waqf Board, thereafter carried out an inquiry, in which it found that the shop in question that had been sold out by Abdul Rafeeq, was not the shop mentioned in Waqf Deed and was not registered as Waqf property. The order dated 10.02.2012 has been noticed by the learned Appellate Court.
Learned counsel for the respondents has also referred to passages from the order of the Appellate Court, wherein receipts issued in favour of Ishwar Chandra, the predecessor in interest of the petitioners as tenants by Abdul Rafeeq as owner and landlord were considered as undisputed evidence of landlord-tenant relationship. He has referred to a judgment rendered by the Hon'ble Supreme Court in Bismillah Be (Dead) by LRs vs Majeed Shah, 2017 (1) Supreme 164, wherein the Supreme Court had held that paying rent to the Assignee/Vendee of the tenanted property by the tenant results in creation of an attornment between the parties. In such a case, the tenant is deprived of his right to challenge the derivative title of the Assignee/Vendee, and that a person, who acquires title of the property by successive sale and transfers and the tenant admits to be a tenant of the original owner, he becomes the tenant of the present owner by operation of law.
Mr W.H. Khan, learned Senior Advocate has referred to paragraphs 25 and 26 of the said judgment, which are being quoted herein below:
"25. Law relating to derivative title of the landlord (Lessor) and challenge, if made, to such title by the tenant (Lessee) during subsistence of tenancy in relation to demised property is fairly well settled. Though by virtue of Section 116 of the Evidence Act, 1872, the tenant is estopped from challenging the title of his landlord during continuance of the tenancy, yet the tenant/lessee is entitled to challenge the derivative title of an Assignee/Vendee of the original landlord (Lessor) of the demised property in an action brought by the Assignee/Vendee against the tenant for his eviction from the demised property under the Rent laws. This right of a tenant is, however, subject to one caveat that the tenant/lessee has not attorned to the Assignee/Vendee. In other words, if the tenant/lessee pays rent to the Assignee/Vendee of the tenanted property then it results in creation of an attornment between the parties which, in turn, deprives the tenant/lessee to challenge the derivative title of an Assignee/Vendee in the proceedings.
26. However, once the Assignee/Vendee proves his title to the demised property, the original tenancy devolves on the Assignee/Vendee and tenant/lessee by operation of law on the same terms and conditions on which it was entered into with the original landlord/lessor and continues till either modified by the parties or is determined by the landlord in accordance with law. It enables the Assignee/Vendee to acquire the status of a "new landlord" in place of the original landlord of the demised premises qua tenant/lessee. (See Law of Evidence by Sarkar, 16th Edition, pages 2106-2108)."
Mr W. H. Khan, learned Senior Advocate, therefore submits that the predecessor in interest of the petitioners having Un-demuringly given rent to the predecessor in interest of the respondents, it could not be said that the property in question was a Waqf property as the rent receipts that were issued by the predecessor in interest of the respondent were in his individual capacity as owner and landlord and not as Muttawalli of Waqf Allah Alaulad.
Learned counsel for the petitioner in rejoinder has submitted that with regard to the comparative hardship, the case of the petitioners-tenants has been brushed aside by the learned Trial Court and by the Appellate Court altogether. He has specifically stated in his written statement and in his appeal that the landlord was not an unemployed person and was not working as daily labour. He was doing the business of property dealing. However, the learned courts below have only relied upon the affidavit filed by the landlord that he now wishes to do the business of Ready-made Garments in the shop in question. The learned courts below have also wrongly relied upon the case law to the effect that if the petitioners-tenants do not make a genuine effort to find an alternative accommodation since the service of notice of termination of tenancy and vacation of premises in question during the pendency of the trial and appeal, it could safely be said that the tenants were not facing any hardship.
I have heard the learned counsel for the parties and I have gone through the impugned orders. For maintaining the Release Application the applicability of U.P. Act No. 13 of 1972 must first be proved. Thereafter, the relationship of landlord and tenant must be proved, then only bonafide need of the landlord can be seen and comparative hardship of the tenant can be considered. The applicability of the U.P. Act No. 13 of 1972 was clearly looked into by the learned courts below and a concurrent finding of fact has been given that the shop in question is not the Waqf property, even the Sunni Central Waqf Board in its order dated 10.11.2012 had said that the shop in question was not the Waqf property.
With regard to the relationship of the landlord and the tenants, the predecessor in interest of the respondents were admittedly landlord and they had been issuing rent receipts to the predecessor in interest of the petitioners, and these rent receipts have not been disputed at any stage before the learned courts below.
With regard to the bonafide need, the learned courts below have found that the landlord may have been carried out any business or may have been alternatively employed, but that would not in any case, lessen the need for them to establish a business of their own in the shop in question.
With regard to the comparative hardship, the courts below have relied upon judgments rendered by this Court in Jai Kishan Khandelwal vs VIIth Additional District Judge Agra, 2006 (24) LLD 334; Mohd. Suhail vs Additional District Judge, 2007 (2) ARC 354; Satnam vs Additional District Judge, Lucknow and others, 2010 Law Suit 640 and given a finding that the petitioners made no attempt to find alternative accommodation during the pendency of the application for release, and therefore, their comparative hardship cannot now be seen.
I do not find any legal or factual infirmity in the orders impugned.
This petition is, therefore, dismissed.
No order as to costs.
At this stage, learned counsel for the petitioners says that some time may be given to the tenants to vacate the premises in question.
Accordingly, the petitioners-tenants are given three months' time to vacate the shop in question subject to the petitioners-tenants filing an undertaking before the learned court below within 15 days from today and also depositing rent of Rs. 1000/- per month.
Order Date :- 18.4.2018 Sazia