Karnataka High Court
Mohamed Musa Sait Wakf, A Wakf - Ul - ... vs Shri Atul A. Modi And Shri Anup A. Modi, ... on 13 March, 2007
Equivalent citations: 2008(1)KARLJ507, 2007 (6) AIR KAR R 463
Author: K. Ramanna
Bench: K. Ramanna
ORDER K. Ramanna, J.
1. This Civil Revision Petition is filed under Section 18 of the Karnataka Small Causes Court Act, 1964 to set aside the order dated 12/8/2003 passed in S.C.No. 15334/2003 by the XV Additional Small Cause Court, Mayo Hall in (SCCH-19) Bangalore.
2. The case of the petitioner-M/s Mohamed Musa Sait Wakf, A Wakf-ul-Aulad, is that it has filed a suit for ejectment against the respondents and sought for delivery of actual vacant physical possession of the property from the respondents and other consequent relief. According to it, the petition schedule property was let out to the respondents under a lease deed dated 1/6/2000 for a period of 3 years on a monthly rent of Rs. 2,000/-, since the respondents were irregular in paying the rent and they have sub-let the property to others. The rent derived from the petition schedule property was to be distributed among the beneficiaries in accordance to the Wakf deed dated 30/10/1920. The petitioner-plaintiff was a Wakf-alal-Aulad simplicitor and is exempted from the application and purview of Section 85 of the Wakf Act. The Memo filed in S.C.No. 15334/03 by the defendants-respondents was allowed by the trial Court and held that there is no jurisdiction to entertain. Therefore, the petitioner-plaintiff has come up with this Civil Revision Petition.
3. Heard the arguments of learned Counsel for the revision petitioner and learned Counsel for the respondents.
4. The learned Counsel for the revision petitioner contended that the ancestors of the petitioner-M/s. Mohamed Musa Sait Wakf, has executed a lease deed in 1920. It is a Wakf property dedicated for religious and charitable institution. It is argued by the learned Counsel for the petitioner-plaintiff that the respondents has taken the property for lease on 1/6/2000 for a period of three years on monthly rent of Rs. 2,000/-. The respondents were irregular in payment of rent therefore, the petitioner herein filed a suit for ejectment. It is further argued that when the petitioner-plaintiff filed a suit the respondents-defendants filed a memo under Section 85 of the Wakf Act, 1995 to the effect that the Small Cause Court has no jurisdiction to entertain the suit for ejectment. Therefore, the trial Court has wrongly, interpreted and considered that the Section 85 of the Wakf Act, 1995 is a total bar. It is argued that the Wakf Tribunal has no jurisdiction to entertain any dispute that arises with regard to the tenancy in between the landlord and tenant in respect of the suit schedule property. He further argued that the Wakf deed of 1920 at Annexure-C executed by Mohammed Musa Sait son of Hajee Ebrahim Sait creating Wakf was in his favour, his family, children, and descendants, and ultimately for the benefit of the poor properties belonging to him of a permanent character. Therefore, the suit schedule property was represented by Muthavalli, the descendants as well as his children have got every right to enjoy the suit schedule property if no descendants were alive then ultimately the benefit of the Wakf property should go to the poor persons. It is contended that the trial Court has wrongly interpreted that the filing of a suit for ejectment by the petitioner-plaintiff is a total bar. The impugned order suffers from illegality and incorrectness and therefore the sane is to be set aside. While arguing the case, the learned Counsel for the revision petitioner drew the attention of this Court to the various provisions and the definition under Waif Act of Section 85 so also the commentary written by the author S.A. Radar, Eastern Law House, wherein the author has discussed the jurisdiction of the Wakf Tribunal. Therefore, the revision petitioner herein has rightly filed a suit for ejectment. The Wakf-al-Auled is a wakf within the meaning of deed of wakf which discloses that the author of the wakf deed to enjoy the fruits of the property by himself, his children and the descendants and thereafter the benefit, of wakf will go to the poor persons. Therefore, the trial Court wrongly interpreted and failed to consider the ratio laid down by the Apex Court in the case of Tamil Nadu Wakf Board v. M. Ebrahim Musuex Muthavalli and Ors. , therefore, prays for setting aside of the order.
5. On the other hand, the learned Counsel for the respondents contended that the property in question is a Wakf property and without filing an application before the Wakf Tribunal, the petitioner-plaintiff filed a suit for ejectment. The Civil Court has no jurisdiction to entertain a suit with regard to the Wakf property. Therefore, the order passed by the Trial Court in allowing the memo and holding that the Small Cause Court has no jurisdiction to entertain the suit for ejectment is in accordance with law. It is contended that if any property is given to the Waif board, it is deemed that it is a Wakf property, which is governed by the Wakf Act of 1985. Therefore, the Trial Court was right in deciding the matter on the memo filed by the respondents. Hence, prays for dismissal of the petition.
6. After hearing the arguments of learned Counsel for both the parties and after perusing the materials placed on record, the point that arise fox consideration is whether the order passed by the trial Court in dismissing the Small Cause case, seeking ejectment of the respondents-defendants is incorrect and illegal?
7. As could be seen from the record that the petitioner-M/s Mohamed Musa Sait Wakf, has executed Wakf deed in the year 1920 in respect of the suit schedule property. It is also an admitted fact that respondents are the tenants in respect of suit schedule property bearing shop premises No. 55, Central Street, Bangalore on rent of Rs. 2,000/- p.m. It is also an admitted fact that lease deed dated 1/6/2000 was entered into between the respondents and revision petitioner-plaintiff for a period of three years. It is the contention of the revision petitioner before the trial Court that the respondents are irregular in payment of rent, therefore, filed a suit for ejectment, since the property in question is a walf property. The Small Cause case filed by the revision petitioner-M/s. Mohamed Musa Sait Wakf represented by its Muthavalli Shri Muneer Sai contended that the Judgment and Decree for delivery of actual vacant physical possession of the suit schedule property from the respondents. In pursuance of the summons, respondents appeared through their counsel and filed their written statements. The records disclose that the petitioner-plaintiff represented by Muthavalli, the power of attorney holder. viz., Afzal Pasha filed an affidavit and the same is on record. The respondents-defendants also filed a memo to hold that the Small Cause Court has no jurisdiction to entertain the suit fox ejectment since there is a bar under Section 85 of the Wakf Act and the Wakf Tribunal alone can decide the matter. As could be seen from the records that the respondents are the tenants under the revision petitioner. The Wakf Deed was executed by his descendants in the year 1920 to enjoy the property by himself then his children, descendants thereafter it shall go to the poor persona. Therefore, there is difference between Wakf-alal-aulad simplicitor and Wakf- alal-aulad composite. In the instant case, by plain reading of Wakf deed discloses that the entire right was not given to the charitable institutions, he reserved his right over the property by himself, his family, children and descendants. In the absence of his descendants and family, the property should go to the benefit of the poor persons. Therefore, the finding recorded by the trial Court that the Small Cause Court has no jurisdiction under Section 85 of the Wakf Act, 1985 is totally incorrect and illegal. According to Section-85 the powers of Tribunal has rightly discussed by the author S.A. Kader, the Law of Wakfs, An analytical and Critical study, 1999 Edition.
In view of the facts and circumstances of the case and the ratio lay down by the Division Bench of Madras High Court cited supra, that the suit schedule property is a composite of wakf property. Therefore, the Wakf Tribunal cannot decide the rights of landlord and tenant. Hence, the impugned order under challenge passed by the Wakf Tribunal is hereby set aside and the matter is remanded back to the Tribunal with a direction to dispose of the case in accordance with Law, within six months from the date of receipt of copy of this order.