Telangana High Court
K Hussaini, Hyd Another vs Masjidehussaini, Hyd on 5 February, 2019
HONOURABLE Dr.JUSTICE B. SIVA SANKARA RAO
Second Appeal No.63 of 2019
Judgment:
The appellant is the defendant by name Khalilullah Hussaini in
O.S.No.3178 of 2011 maintained by the Masjid-e-Hussaini represented by its
Muthawalli Syed Shah Yousuf Hussaini. It is property of the plaintiff who let
out the property to the defendant and despite notice u/sec.106 of the
Transfer of Property Act(for short, 'the TP Act'). As per the plaint
averments, the defendant failed to vacate and trying to change nature of
the structures existing in the plaint schedule property by making additions
and alteration and he is to be evicted and pending disposal of the Eviction
Suit supra sought to restrain the defendant from making any alterations or
parting with the possession including to induct any third party and also
liable to pay damages for use and occupation from 01.11.2011 to date of
delivery of possession and for such other reliefs.
The contest of the defendant in the written statement while
admitting the property is that of the plaintiff entity is that it is Wakf
property owned by the Almighty and no one on the Earth is permitted to
deal with the so called property and the lower appellate and trial Court's
order is not binding on him and the plaintiff is not entitled to evict him.
The jurisdictional aspect was not even raised as to party must
approach the Wakf Board. It is not even stated in the written statement of
it is a public Wakf and the plaintiff entity is not a private one unless it is a
public Wakf property, the question of invoking jurisdiction of the Wakf Act
does not arise. Once such is the case, from the contest from trial Court
having elaborately dealt with several issues with reference to the evidence
of P.W.1, D.Ws.1 and 2 and Exs.A.1 to A.4 and B.1 to B.37, came to right
conclusion and from entire reading of the judgment, there is nothing to
interfere practically that is rightly thereby confirmed by the lower
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appellate Court in dismissing the appeal of the defendant with the
observation of appeal dismissed and directed to hand over the vacant
physical possession of the suit schedule property to the plaintiff within two
months from the date of judgment dt.15.02.2015 in A.S.No.351 of 2013 by
the IX Addl.Chief Judge, City Civil Court, Hyderabad.
It is impugning the same, the defendant preferred the Second Appeal
raising substantial questions of law of 1) Whether the first appellate Court
and the lower Court rightly adjudged the suit property as per Section 106 of
the TP Act, 2) Whether the first appellate Court and the lower Court
observed that the rent collected from the appellant and that does he knows
that he has collected rents for from the appellant and also any other
grounds to urge at the time of hearing.
Even after amendment to Section 106 of the TP Act in 2003, any
irregularity in the notice is not a ground to dismiss the suit. There is no any
substantial question of law regarding quit notice u/sec.106 of TP Act given.
Even no substantial question of law raised as to how far the plaint schedule
property is a Wakf property if at all a civil Court has no jurisdiction much
less to say that it goes to the root of the matter to consider, leave about no
such plea raised and regarding so called collection of rents, once it is
admitted lease from the plaintiff by the defendant, Section 116 of the
Indian Evidence Act comes into play of he is estopped from denying right of
the Landlord to the title but for to pay rents or damages for use and
occupation as the case may be till the property is delivered back.
Having regard to the above, as there are no any substantial questions
of law raised or involved even to formulate afresh, the Second Appeal at
the threshold is liable to be dismissed but for to say at this stage from the
hearing, as the defendant wants to vacate by taking reasonable time to
secure alternate premises of 8 months, the same is recorded with the
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consent of the plaintiff/respondent to the un-admitted Second appeal and
the Second Appeal is disposed of before admission granting 8 months time to vacate premises by the defendant on or before 30.09.2019. In the meantime cannot create any third party interest, cannot alienate in any manner and cannot change the nature of the property and shall vacate on or before that day without fail and if he fails to vacate besides rights and remedies available to the respondent/plaintiff to execute, the defendant is also liable for contempt of Court by virtue of this order. The defendant also to pay towards use and occupation charges of Rs.1500/- (Fifteen hundred only) per month from the 01.02.2018 till vacating the same. If he fails to pay use and occupation charges for continuously two months, the Plaintiff is entitled to evict him without waiting for eight (8) months time supra.
Consequently, miscellaneous petitions, if any, pending shall stand closed.
____________________________ Dr. JUSTICE B. SIVA SANKARA RAO Date:05.02.2019 vvr