Kerala High Court
Puthiya Veettil Rajeevan vs Siraj Ul Eeman Sabha (Regd.) on 12 December, 2019
Author: Sathish Ninan
Bench: Sathish Ninan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
THURSDAY, THE 12TH DAY OF DECEMBER 2019 / 21ST AGRAHAYANA, 1941
RSA.No.1192 OF 2019
ARISING FROM THE JUDGMENT AND DECREE DATED 01.02.2019 IN AS 23 OF
2016 OF THE ADDL. DISTRICT JUDGE - III, THALASSERY IN JUDGMENT AND
DECREE DATED 30.09.2015 IN OS 42/2012 OF MUNSIFF'S COURT,
THALASSERY
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APPELLANT/APPELLANT/1ST DEFENDANT:
PUTHIYA VEETTIL RAJEEVAN,
AGED 53 YEARS,
S/O.RAGHAVAN, 8/222, PRANAVAM SAREES AND READYMADES,
PANOOR, BUS STAND ROAD, PANOOR, THALASSERY TALUK.
BY ADVS.
SRI.A.JAYASANKAR
SRI.MANU GOVIND
SMT.MEGHA MUKUNDASWAR
RESPONDENTS/RESPONDENTS/PLAINTIFFS & 2ND DEFENDANT:
1 SIRAJ UL EEMAN SABHA (REGD.)
REPRESENTED BY ITS PRESIDENT,
VANNATHANKANDY KHALID, BUSINESS, S/O.KUNHABDULLA
HAJI, AGED 45 YEARS, BUSINESS, RESIDING AT VALIYA
VEETTIL, CHEKKIYAD AMSOM DESOM P.O., CHEKKIYAD,
PARAKKADAVU, KOZHIKODE DISTRICT-673 509.
2 ITS SECRETARY,
N.ABDUL RAHMAN DHARIMI, S/O.KUNHAMMED KUTTY MASTER,
AGED 49 YEARS, BUSINESS, RESIDING AT NALLOOR HOUSE,
CHEKKIYAD AMSOM DESOM, POST PULLIYAVU, PARAKKADAVU,
KOZHIKODE DISTRICT-673 509.
3 KERALA STATE WAKF BOARD,
REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, KALOOR,
KOCHIN, ERNAKULAM DISTRICT-682 017.
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
12.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
SATHISH NINAN, J.
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RSA No.1192 of 2019
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Dated this the 12th day of December, 2019
JUDGMENT
The concurrent decree in a suit for eviction, recovery of arrears of rent and damages for use and occupation is under challenge by the first defendant.
2. The first respondent-plaintiff is a Wakf who is the landlord of the plaint schedule property. The appellant-first defendant is a tenant. The suit is filed for eviction of the tenanted premises on termination of the lease, for recovery of arrears of rent and for damages for use and occupation of the premises. The plaintiff claimed exemption under the provisions of the Kerala Buildings (Lease & Rent Control) Act since the property in question is Wakf property. The suit was concurrently decreed by the courts below.
3. The thrust of the argument of the learned counsel for the appellant is that the suit is barred by virtue of Section 83(1) read with Section RSA No.1192 of 2019 :- 2 :-
85 of the Wakf Act, 1995 as amended in the year 2013. The said provisions read as under:-
"83. Constitution of Tribunals, etc. (1) The State Government shall, by notification in the Official Gazette, constitute as many Tribunals as it may think fit, for the determination of any dispute, question of other matter relating to a waqf property, eviction of a tenant or determination of rights and obligations of the lessor and the lessee of such property, under this Act and define the local limits and jurisdiction of such Tribunals.
85. Bar of jurisdiction of civil courts No suit or other legal proceeding shall lie in any civil court, revenue court and any other authority in respect of any dispute, question or other matter relating to any waqf, waqf property or other matter which is required by or under this Act to be determined by a Tribunal."
4. Pertinently the suit in question was filed as early as in the year 2012 whereas the amendment to Section 83(1) including the suit for eviction of RSA No.1192 of 2019 :- 3 :-
tenant was incorporated by amendment in the year 2013. The Apex Court in Punjab Wakf Board v. Sham singh Harike [2019 (4) SCC 698] held that the amendment does not affect pending litigations. The Apex Court held thus:-
"Section 83(1) of the Wakf Act, 1995 has been substituted by Act 27 of 2013. The amended provision specifically includes eviction of a tenant or determination of rights or obligations of the lessor and lessee of wakf property. However, both the suits giving rise to the present appeals were filed much before the amendment made to Section 83 by Act 27 of 2013. Thus, in the present case, Section 83 of the Wakf Act, 1995 has to be interpreted as it existed prior to the aforesaid amendment."
5. It was further held that, prior to the amendment, the civil court had jurisdiction to entertain a suit for eviction of a tenant from the building of a Wakf. Therefore, the present suit which was filed prior to the amendment, is perfectly maintainable. The contention on the RSA No.1192 of 2019 :- 4 :-
ground of maintainability was rightly negatived by the courts below.
Coming to the contention that there is no arrears of rent due to the plaintiff, on appreciation of evidence, the courts below have concurrently upheld the claim of the plaintiff for arrears. The said finding is purely one of fact and is based on materials. No question of law much less any substantial question of law arises for consideration in this second appeal. The Appeal fails and is accordingly dismissed.
Sd/-
SATHISH NINAN JUDGE kns/-
//True Copy// P.S. to Judge