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Mohammad Siddique v. A.D.J., Kanpur Nagar & Another - WRIT - A No. 36559 of 2001 [2006] RD-AH 18970 (9 November 2006)


This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).


Hon'ble Rakesh Tiwari, J

Case has been taken up in the revised list. Heard counsel for the petitioner and perused the record.  Counsel for the respondents is not present.

The petitioner has challenged the validity and correctness of impugned order dated 11.9.2001 passed by Additional District Judge, Court No. 8, Kanpur Nagar in S.C.C Revision no. 148 of 1996 allowing the revision and setting aside the decree of the trial Court in S.C.C. Suit no. 1358 of 1978 for eviction of the petitioner from the premises, in dispute.

The facts of the case, as disclosed in the writ petition, are that the House No. 70 Fazalganj, Kanpur was formerly Hata No. 123/496 (renumbered as 123/496-A) and presently bearing no. 123/902 belonged to Maula Bux and Mohd. Fazal. They by means of registered waqf deed dated 20.4.1921 bequeathed the disputed property together with appurtenant land in favour of Waqf.  A portion of the said property was acquired by the State and in lieu thereof piece of another land was given to them hence another registered waqf deed dated 22.4.1937 was executed.  This property was numbered as 59 and 60 and the present building is standing thereon.

It is claimed that the said waqf was also got registered with the U.P. Sunni Central Board of Waqfs, Lucknow as Waqf No. 1144/8 to 11 Ex. II Cir (new 6474/8 to 11).

It is alleged that at the relevant time one Haji Tahir Hussain was appointed as Mutawalli of waqf but as he acted against the interest of waqf by selling the waqf property, he was removed from the officei vide order dated 29.3.1978 and a Committee was appointed by the Waqf Board's order dated 2.6.1978 for managing the waqf through Sri Abdul Samad as its Secretary.

Haji Tahir Hussain and others instituted Original Suit no. 351 of 1978 on the ground that waqf deed dated 22.4.1937 and former waqf deed dated 20.4.1921 executed by Maula Bux, Sri Fazal Husain and Mohd. Shah were invalid and be cancelled being void documents. Later on the plaint of the said suit was amended also praying for relief of cancellation. An ad-interim injunction dated 22.9.1978 was granted by the Trial Court in favour of Haji Tahir Hussain, which was challenged in Misc. Appeal no. 351 of 1978 by the Waqf Committee through its Secretary Sri Abdul Samad. The appeal  was allowed vide judgment and order dated 24.5.1979 passed by VIIIth Additional District Judge, Kanpur.  It is claimed that in the aforesaid suit, Tahir Hussain examined himself as P.W. 1 and clearly admitted that the house, in dispute, was also waqf property. The suit was ultimately dismissed by judgment and decree dated 7.5.1988 holding that the property was registered with Waqf Board, as such, Sri Tahir Hussain had no right to sue.

Thereupon Hari Tahir Hussain filed a suit for eviction of Sri Peer Mohammad, which is subject matter of challenge in Second Appeal nos. 931 of 1996 and 878 of 1997 and  before this Court wherein interim orders dated 11.4.1996 and 19.9.1997, appended as Annexure 8 and 9 to the writ petition were passed by this Court

 The petitioner claims that the entire area, including the house, in dispute, has been declared as slum area under the provisions of U.P. Slum Area (improvement and Rehabilitation) Act No. 18 of 1962,  On having been declared as slum area, S.C.C. suit no. 1358 of 1978 was instituted by Haji Tahir Hussain against the petitioner claiming himself to be the landlord and petitioner as tenant.  It was alleged in the suit that the petitioner defaulted in payment of rent and his tenancy stood determined by notice dated 13.7.1978.  

The suit was contested by the petitioner by filing written statement, denying the plaint allegation, inter alia that there was no relationship of landlord and tenant between the parties and it being a waqf property, rent was being paid to the Mutawalli. The petitioner examined himself as P.W. 1.

The suit was dismissed by the trial Court vide judgment and decree dated 24.8.1996, which was challenged in S.C.C. Revision no. 148 of 1996 and the revisional Court has allowed the revision vide judgment and decree dated 11.9.2001.  

Aggrieved by the judgment and decree passed by the revisional Court, the petitioner has invoked the writ jurisdiction by means of the instant writ petition.

It has been contended by counsel for the petitioner that the petitioner is tenant of waqf property and is paying rent to the committee appointed by the Waqf Aboard.  He submitted that the trial Court, on appraisal of evidence available on record, has rightly held that respondent no. 2 is not the landlord  and the property, in dispute, is waqf property of which the petitioner is tenant; that he is continuously paying rent to the Waqf, as such, there is no default in payment of rent. Sri Qadeer further contended that the revision has been allowed and the suit has been decreed by entering into questions of fact, as such, the revisional Court committed a manifest illegality on the face of record which is not peremissible. It is vehemently urged that findings recorded by the revisional Court to the effect that the property is not waqf property and petitioner is not the tenant of Waqf Board is incorrect and liable to be quashed.  

It appears from the averments made in the Counter Affidavit that the factum of property being waqf property has been denied by the respondent no. 2. According to the averments contained in the counter affidavit, it makes no difference whether Haji Tahir Hussain is Mutawalli or not, as he is still discharging the duties of Mutawalli of the waqf. In paragraph 12 of the Counter Affidavit, the tenant- Haji Tahir Hussain has specifically averred that the disputed property is not a waqf property  and a large number of suits for payment of rent and decree for ejectment  which are subject matter of writ petitions having been filed by the different parties.

It also appears that a stand has been taken by the respondent no. 2 that the revisional Court has not reappreciated evidence but has found material illegality and infirmity in the judgment of the trial Court that the property in dispute is waqf property, as such has rightly allowed the revision.  It is also averred in the counter affidavit that the disputed property does not come under the slum area as the notifications declaring the location as slum area under the Act has been withdrawn.

At this stage, counsel for the petitioner conceded that since the notification declaring the disputed property in slum area having been recalled, the property, in dispute, it is outside the slum area and he does not press his argument in this regard..

Perusal of the impugned order passed by revisional Court reveals that after consideration of entire facts and circumstances of the case, it has arrived to a conclusion that the suit property is not a waqf property and the petitioner has defaulted in payment of rent.  The order of the revisional Court is as under :-

" mijksDr foospukuqlkj eSa bl fu"d"kZ ij igqWpk gwW fd Ik=koyh ij miyC/k lk{; ds ifjizs{; esa oknh@fuxjkuhdrkZ o izfroknh@fdjk;snkj ds e/; Hkw&Lokeh o fdjk;snku ds lEcU/k lUnsg ls ijs gksuk fl) gks tkrk gS A Ik=koyh ij miyC/k lk{; ds ifjizs{; esa ;g Hkh fl) gks tkrk gS fd izfroknh@fdjk;snkj ds Onkjk oknh@fuxjkuhdrkZ Hkw&LokfeRo dks tkucw>dj fcuk fdlh dkj.k ds vLohdkj fd;k x;k gS A Ik=koyh ij miyC/k lk{; ds ifjizs{; esa ;g Hkh Li"V gks tkrk gS fd izfroknh@foi{kh @fdjk;snkj ds mij okn izLrqr djrs le; pkj ekg ls vf/kd /kujkf'k fdjk;s ds #Ik esa 'ks"k FkhA vr% mijksDr rF;ksa dks n`f"Vxr j[krs gq,] foOnku v/khuLFk U;k;ky; Onkjk fn;k x;k fu"d"kZ {ks=kf/kdkj dk nq#Ik;ksx djrs gq, voS/kkfud #Ik ls fn;k x;k fu"d"kZ gS vkSj bl dkj.k fuxjkuh gj n`f"V ls Lohdkj fd;s tkus ;ksX; gSA


fuxjkuh lO;; Lohdkj dh tkrh gS A foOnku v/khuLFk U;k;ky; Onkjk ikfjr vkns'k fnukafdr 24-8-96 vikLr djrs gq, oknh@fuxjkuhdrkZ Onkjk izLrqr y?kqokn vkKfIr djus dk vkns'k fn;k tkrk gS A ,rnOnkjk izfroknh@foi{kh fdjk;snkj dks vknsf'kr fd;k tkrk gS fd og fu.kZ; dh frfFk ds nks ekg ds vUnj iz'uxr fookfnr lEifRr dks fjDr djds mldk dCtk o n[ky oknh@fuxjkuhdrkZ dks lkSai ns A

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                            U;k;ky; d{k la0 8 dkuiqj uxj A"

It having been conceded by the counsel for the petitioner that the suit property does not come within the slum area and it having been proved that the disputed property is neither a waqf property nor the petitioner has been continuously paying rent, I find no illegality or infirmity in the order impugned warranting interference in the writ jurisdiction.

Furthermore, the contention of the respondent that it makes no difference whether respondent no. 2 is Mutawalli of the Waqf or not as he is discharging the duties of Mutawalli, has no force.  Admittedly, he was removed from the office vide order dated 29.3.1978 and a Committee was appointed by the Wafq Board vide order dated 2.6.1978 and Sri Abdul Samad was appointed as its Secretary. On the facts and in the circumstances of the case, it cannot be said that Hazi Tahir Hussain- respondent no. 2 is discharging the duties of Mutawalli of the waqf.  It is apparent from record that the Committee appointed by the Waqf Board's order dated 2..6.1978 is in office and is discharging its functions through its Secretary in the management of the concerned waqf. Though it is not permissible for the revisional Court to enter into findings of fact recorded by the trial Court but the revisional Court certainly can interfere with the finding of fact recorded by the trial Court which are perverse and against the material available on record.  In my opinion, the revisional Court has rightly allowed the revision holding that the suit property is not a waqf property.

For the reasons stated above, the writ petition fails and is dismissed.  The petitioner shall vacate the disputed accommodation within a period of two months from today and handover peaceful possession to the respondent no. 2.  He will also make payment of arrears of rent to the respondent no. 2 within the same period.  In case of failure on the part of the petitioner to comply with this order, he will be liable for eviction by coercive process, in accordance with law, with the help of local Police and the arrears of rent shall be recoverable as arrears of land revenue.  No order as to costs.

Dated 10.11.2006



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