IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD FRIDAY, THE THIRTIETH (30TH) DAY OF SEPTEMBER, TWO THOUSAND AND ELEVEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY CRP No.3029 of 2010 Between: Smt.Azizunnisa Begum (died) & others … Petitioners And: Anjuman Khadimul Muslimeen & another … Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY Civil Revision Petition No.3029 of 2010 ORDER: This revision is directed against the order dated 05.07.2010 in OS No.155 of 2001 on the file of the A.P. Wakf Tribunal, Hyderabad, wherein, the said suit filed by the first respondent herein-plaintiff, against the petitioners-D.1 to D.3 and 2nd respondent-4th defendant, for eviction and recovery of arrears of rent and future mesne profits was decreed. 2. Heard both sides. Perused record. 3. The first respondent herein filed suit contending that the plaint schedule premises bearing Nos.11-6-226 to 271 situated at Namapalle, is a wakf property, belonging to the plaintiff society and that originally it was leased out to one Syed Anwaruddin for a period of 11 months and even thereafter, he continued to be a tenant, till his death on 21.02.1997 by running a hotel and paying rent of Rs.3500/- per month. The plaintiff alleges that the original tenant sub leased the hotel to 4th defendant, who was previously manager of the said hotel and was earning thousands of rupees every month, but paying only Rs.3500/- per month to the plaintiff. The first defendant is the wife and defendants 2 and 3 are the sons of original tenant, and are claiming tenancy rights over the suit property after the death of the original tenant, and the defendants 1 to 3 are not paying any rents from August 1997. Even 4th defendant, who is in illegal possession of the building, is not paying rents. The plaintiff addressed a letter dated 10.06.1997, for which the 2nd defendant gave a reply on 24.6.1997 with false averments. Subsequently, plaintiff got issued legal notice dated 24.07.1997 to 2nd defendant, for which 2nd defendant got issued a reply dated 07.08.1997 claiming that they are the tenants of the plaintiff through one Dr.Syed Tajuddin Quadri. One Saifuddin Quadri was appointed as muthawalli on 16.10.1999 by A.P. Wakf Board and he got issued notice under Section 106 of the Transfer of Property Act on 16.01.2000 to defendants 1 to 3 terminating the lease and demanding the defendants to vacate and also claiming mesne profits at Rs.20,000/- per month. The 2nd defendant got issued a reply on 29.01.2000. Hence, the suit for eviction and recovery of arrears of rent. 4. The defendants 1 to 3 filed written statement, admitting the suit property to be the wakf property, belonging to the plaintiff and that it was leased out to the original tenant Syed Anwaruddin. The defendants 1 to 3 contended that the original tenant gave licence to 4th defendant for a period of 10 years. The defendants admitted exchange of notices between the parties. According to them, the rents were collected by Tajuddin Quadri till 1997 and thereafter, they filed OS No.2676 of 1997 on the file of the III Junior Civil Judge, City Civil Court, Hyderabad and have been depositing the rents in State Bank of India, Aghapura branch and as per the directions of this Court in CMP No.16202 of 2001 in CCCA Nos.118 and 128 of 2001, the rent deposited in the Bank was withdrawn and deposited to the credit of OS No.49 of 1998 on the file of the Additional Chief Judge, City Civil Court, Hyderabad. The defendants further contended that the notice under section 106 of the Transfer of Property Act issued by the plaintiff is not valid. They further alleged that the claim for mesne profits and damages is highly exorbitant. The defendants also contended that the Wakf Tribunal has no jurisdiction. 5. Though, 4th defendant filed separate written statement, he virtually adopted the contents of written statement filed by the defendants 1 to 3 and he further contended that he was not a licensee, but was a tenant. Subsequently, 4th defendant remained ex-parte. 6. On the strength of the pleadings, the Tribunal framed the following issues: 1. Whether the plaintiff is entitled for delivery of possession, mesne profits and damages? 2. To what relief? 7. During trial, PWs.1 and 2 were examined and Exs.A.1 to A.23 were marked on behalf of the plaintiff. DW.1 was examined and Exs.B.1 to B.13 were marked on behalf of the defendants. Ex.C.1 Commissioner’s report was marked. While discussing issue No.1, which is couched in wide terms, the learned Presiding Officer, dealt with the aspects as to whether the suit property is a wakf property and the muthawalli can file a suit and whether the notice of termination of tenancy under section 106 of the Transfer of Property Act, was in accordance with law, and recorded finding to the effect that the suit property is a wakf property belonging to the plaintiff society and muthawalli is competent to file suit and notice issued under Section 106 of the Transfer of Property Act is valid. The Tribunal further held that the defendants committed default in payment of rent from August 1997 and therefore, they are liable to vacate the plaint schedule property. Accordingly, the suit was decreed directing the defendants to vacate the plaint schedule property and deliver possession of the same to the plaintiff and further directed the defendants 1 to 3 to pay Rs.1,08,500/- towards arrears of rent from August 1997 to February 2000 and also to pay mesne profits/damages from March 2000 to September 2001 in a sum of Rs.3,80,000/- and continue to pay at the rate of Rs.20,000/- per month from October 2001 till delivery of possession. Aggrieved by the same, the defendants 1 to 3 filed the present revision. 8. The main contention of the learned counsel for the petitioners is that the Tribunal has no jurisdiction to entertain the suit for eviction as held by the apex Court in ‘Ramesh Gobindram v. Sugra Humayun Mirza Wakf[1]’, wherein the apex Court held as follows: “…..From a conjoint reading of the provisions of Sections 6 and 7 (supra) it is clear that the jurisdiction to determine whether or not a property is a wakf property or whether a wakf is a Shia wakf or a Sunni wakf rests entirely with the Tribunal and no suit or other proceeding can be instituted or commenced in a Civil Court in relation to any such question after the commencement of the Act. What is noteworthy is that under Section 6 read with Section 7 (supra) the institution of the Civil Court is barred only in regard to questions that are specifically enumerated therein. The bar is not complete so as to extend to other questions that may arise in relation to the wakf property.” It was further held as follows: “………It follows that although Section 85 is wider than what is contained in Sections 6 and 7 of the Act, the exclusion of jurisdiction of Civil Courts even under Section 85 is not absolute. It is limited only to matters that are required by the Act to be determined by a Tribunal. So long as the dispute or question raised before the Civil Court does not fall within four corners of the powers vested in the Tribunal, the jurisdiction of the former to entertain a suit or proceedings in relation to any such question cannot be said to be barred.” It was further held as follows: “………In the cases at hand the Act does not provide for any proceedings before the Tribunal for determination of a dispute concerning the eviction of a tenant in occupation of a wakf property or the rights and obligations of the lessor and the lessees of such property. A suit seeking eviction of the tenants from what is admittedly wakf property could, therefore, be filed only before the Civil Court and not before the Tribunal. The contrary view expressed by the Tribunal and the High Court of Andhra Pradesh is not, therefore, legally sound. So also the view taken by the High Courts of Rajasthan, Madhya Pradesh, Kerala and Punjab and Haryana in the decisions referred to earlier do not declare the law correctly and shall to the extent they run counter to what we have said hereinabove stand overruled. The view taken by the High Courts of Allahabad, Karnataka, Madras and Bombay is, however, affirmed.” 9. The apex Court in the above decision has thus resolved the conflict of opinions among various High Courts and after analyzing the scheme of the Act, held that a suit seeking eviction of tenants from what is admittedly wakf property could be filed only before the civil Court, and not before the Tribunal. While setting aside the impugned orders passed by the High Court and the Wakf Tribunal in the above matter, the suit filed by the Wakf Board for eviction of the appellants therein, was dismissed. 10. In the above case, the appeal was filed against the orders of this Court, wherein, the revisions filed by the appellants against the order of Wakf Tribunal were dismissed and the orders of eviction passed by the Tribunal were confirmed. The question that arose for consideration in the above decision was whether the Wakf Tribunal constituted under section 83 of the Wakf Act 1995 was competent to entertain and adjudicate upon the dispute regarding eviction of the appellants, who are occupying different items, which are admittedly wakf properties. The Wakf Tribunal decreed the suit holding that it had jurisdiction to entertain the suit and on revision, this Court dismissed the revision petitions and the said orders were challenged by way of appeals before the apex Court. The specific question that arose for consideration in the above decision was whether or not the Wakf Tribunal can entertain and adjudicate upon the dispute regarding eviction of tenant holding the wakf property. Allowing the appeals and setting aside the impugned orders passed by the High Court and Tribunal, the apex Court dismissed the suit filed by the Wakf Board for eviction of the appellants, observing that the order shall not prevent the Wakf Board from instituting, if so advised, appropriate civil action before the competent civil Court for redressal in accordance with law. 11. Learned counsel for the first respondent invited attention to a subsequent decision in ‘Board of Wakf, West Bengal v. Anis Fatma Begum[2]’ wherein the apex Court held as follows: “….Thus, the Wakf Tribunal can decide all disputes, questions or other matters relating to a Wakf or Wakf property. The words “any dispute, question or other matters relating to a Wakf or Wakf property” are, in our 5 opinion, words of very wide connotation. Any dispute, question or other matters whatsoever and in whatever manner which arises relating to a Wakf or Wakf property can be decided by the Wakf Tribunal. The word `Wakf' has been defined in Section 3 (r) of the Wakf Act, 1995 and hence once the property is found to be a Wakf property as defined in Section 3 (r), then any dispute, question or other matter relating to it should be agitated before the Wakf Tribunal. 12. Relying upon the above decision, learned counsel for the first respondent-plaintiff would contend that that even a dispute regarding the eviction is maintainable before the Wakf Tribunal, as the same relates to the wakf property. It is to be noted that in the above decision, the earlier decision Ramesh Gobindram’s (first supra) was referred to and it was observed as follows: “…..Learned counsel for the respondent, however, relied on the decision of this Court in Ramesh Gobindram vs. Sugra Humayun Mirza Wakf (2010) 8 SCALE 698. In the aforesaid decision it was held that eviction proceedings can only be decided by the Civil Court and not by the Wakf Tribunal. The dispute in the present case is not an eviction dispute. Hence, the aforesaid decision in Ramesh Gobindram's case is distinguishable.” 13. As can be seen from the above decision, the question that arose for consideration was whether the demarcation of the wakf property into two distinctive parts, one for wakf-al-al-aulad and remaining portion for pious and religious purposes, was correct and in consonance with the provisions of the Wakf deed and whether the Wakf Act 1995 was applicable for the portion of the said property divided and earmarked for Wakf-al-al-aulad. The dispute therefore related to a wakf-al-al-aulad, but not for eviction of a tenant from the wakf property. While reiterating decision in Ramesh Gobindram’s case (first supra), it was held that ‘eviction proceedings can only be decided by the civil Court and not by the Wakf Tribunal’. 14. The apex court in the subsequent decision in Board of Wakf, West Bengal’s case (2nd supra) held that the earlier decision in Ramesh Gobindram’s case (first supra) was distinguishable, as the dispute in the subsequent case was not an eviction dispute. The ratio of the earlier decision in Ramesh Govindram’s case (first supra), that the suit seeking eviction of tenant from admittedly wakf property, can be filed only before the civil Court and not before the Tribunal, therefore, remained undisturbed. Following the same, it must be held that the Tribunal had no jurisdiction to entertain and adjudicate upon the suit for eviction. The impugned judgment is thus, vitiated as the Tribunal lacks jurisdiction to entertain the suit and adjudicate upon the same, in view of the decision of the apex Court referred to above. 15. In the circumstances, the impugned judgment is held liable to be set aside and the same is accordingly set aside. Consequently, the suit filed by the first respondent/plaintiff stands dismissed. The first respondent/plaintiff is however at liberty to initiate appropriate proceedings before the competent civil Court, if so advised for redressal of their grievance. 16. In the result, the civil revision petition is allowed. No order as to costs. G.V.SEETHAPATHY, J Date: 30.09.2011 bss [1] 2010(6) ALD 76 (SC) [2] 2011(1) ALD 61 (SC)