A.K. Sreelatha vs Cheriya Chakalathopp Tharavad Wakf

Amit Rawal, J.

This order shall dispose of four revision petitions; CRP No.220 of 2018 and CRP No.221 of 2018 against the common judgment and decree dated 20.12.2017 rendered in O.S No.38 and 39 of 2015 and CRP(Waqf) No.46 and 47 of 2023 against Waqf Original suit 1 and 2 of 2021 filed by the Jama-ath.

Since the parties are similar and common question of law involved, these matters are being disposed of together. Cheriya Chakalathopp Tharavad Wakq, plaintiff instituted two suits bearing No.38 and 39 of 2015 against Sri. K.Suresh and his wife A.K Sreelatha who had been in occupation of two shops each bearing Nos.20/294, 20/298, 20/ 297 and 20/299 on rent @ Rs.1000, 850, 550 and 400 respectively. The aforementioned suits were proceeded by legal notices dated 29.11.2014 directing the petitioners-tenants to vacate the premises. The said notices was duly replied by Ext.A7 dated 30.12.2014. It was averred that the aforementioned shops were taken on lease by the husband and wife from the predecessor interest of the plaintiff. The said shops were part of the residential building. The main building which housed the plaint schedule shop rooms is old and dilapidated one and therefore the building was required for demolished for raising a large commercial-cum-residential building. The said shop rooms abut NH 213 and adjacent to Kallai Railway Station much less surrounded by several important establishments like hospitals, Government offices, Commercial and industrial concerns. The other tenants had agreed to vacate the premises.

The respondent has specifically denied the whole contentions raised by the defendants in the reply notice including entrustment of the so called security amount of Rs.1,90,000/- to the earlier landlord and clarified that the exchange deed executed between the plaintiff and Moosa Koya is a genuine and valid document but not a ruse to evict the defendants from the shop rooms.

The defendants contested the suit by raising a plea of maintainability on the premise that the scheduled shops were not the Waqf property and therefore the Tribunal did not have the jurisdiction to entertain and try the suit. At the best, the matter could have been relegated to the Rent Controller as defined under the Rent Act of 1965. It was alleged that the shops were taken on lease from Andru and Kunjammad Haji by a lease deed dated 1.4.1991 and 1.4.2007, 8.2.2005 and 1.9.1993 respectively and had been conducting the business of weighing machines by name and style Surafi Engineering. At the time of the entrustment of the rooms, Rs.40,000/- was given to the landlord in relation to room No.20 of 294 and Rs.1,50,000/- to room No.20 of 298. Strangely, the entrustment of the security was not referred/mentioned in the lease deeds. Subsequently, the rent was enhanced @ 1050/- to room No.20/294 and Rs.1050/- to room No.20/294 and Rs.800/- to room No.20/298 and for other shops @ Rs.500/- and Rs.550/- respectively. Since the parties were at variance, the learned Tribunal in both the cases framed the identical issue.

Whether the plaint schedule property is a Waqf property?

Whether the plaintiff is entitled for a decree of eviction?

What is the order as to reliefs and costs?

Respondent, plaintiff, C.C Abdu Rahiman examined himself as PW1 and K.Suresh appeared as DW1 and brought on record the following documents.

Petitioners Exhibits:

A1- 19/10/2010 Copy of Gazette publication of Kerala State WakfBoard.

A2 - 14/03/2011 Copy of Order No. C2-1008/CR of Kerala State Wakf Board.

A3-14/12/2012 Copy of certificate issued by Kerala State WakfBoard.

A4-02/05/11Copy of exchange deed No. 1447/2011

A5-27/4/2013 Copy of rectification deed No. 1626/2013 Series

A6 - 29/11/2014 Copy of Lawyers notice sent to Sri. K.Suresh with postal receipts and acknowledgment (3 Nos) A7 – 30/12/2014 Reply notice sent to Adv. P.C. Sarath Chandran by Adv.K.K.Krishnakumar.

A8 – 29/11/2014 Copy of Lawyers notice sent to Adv. A.K Sreelatha with postal receipts and acknowledgment (3 Nos.)

A9 – 30/12/2014 Copy of Reply notice sent to Adv. P.C Sarath Chandran by Adv. K.K Krishnakumar

On consideration of the matter, the learned Tribunal allowed the eviction petition. Since the petitioners did not vacate the premises gave a cause of action to the Waqf, the respondent plaintiff to prefer two suits 1 and 2 of 2021 for claiming damages for use and occupation as per the provisions of Section 7(6) of the Waqf Act which has also been allowed and therefore two other revision petitions, as noticed above have been filed and tagged with the main cases.

Learned counsel for the petitioners submitted that the plaintiff miserably failed to prove that the property was dedicated to the Waqf. There has to be a dedication with all criteria; in the absence of the same, the property alleged to be under lease of the petitioners cannot be said to be Waqf and therefore the Tribunal did not have the jurisdiction to try and entertain the eviction petition as well as the suit for damages for use and occupation.

The relief sought by the respondent/plaintiff for evicting the petitioner should not have been entertained by the Tribunal as the suit is not covered by the list specified in Section 6 and 7 of the Waqf Act, 1995. Since Ext.B1 Waqf deed do not disclose the nature of the property to the Waqf, the suit could not have been tried by the civil court.

On the other hand, learned counsel appearing on behalf of the respondent submitted that no doubt, the schedule properties were not comprised in Ext.P1 but Muthavally exchanged the property with the schedule rooms along with some other properties having an extent of 17.77 cents as per the exchange deed No.1447 of 2011 dated 2.5.2011, A4. It was permitted under the Act before it had undergone the amendment in 2013. The amendment came in 2013 mandatorily requiring the sanction of the Board for the purpose of exchange whereas the exchange was done before 2011 and urged this court for dismissal of the CRPs.

We have heard the learned counsel for the parties and appraised the paper book and of the view that there is no force and merit. Section 3(I) introduced before the amendment in 2013 define the Waqf to be a permanent dedication by a person professing Islam or any other person of movable or immovable property for any purpose recognized by the Muslim law as pious, religious or charitable includes waqf by user, grants, wakf Alal-Aulad. The plaint schedule property were not reflected in Ext.P1 but the Muthavally in the year 2011, ie., in May 2011 exchanged the above said properties with the plaint schedule rooms along with some other properties having an extent of 17.77 cents as per the registered exchange deed No.1447 of 2011. Before 2013, there was no bar as per the provisions of Section 51 of the Act to obtain the sanction of the Waqf Board for the purpose of exchange. The bar was introduced only after 2013. Despite that the Waqf had published the factum of exchange in the gazette notification dated 19.10.2010 by inviting objections. No objection has come forth accordingly, the sanction was granted on 14.3.2011. Though there was little error in the exchange deed which was rectified by rectification deed, Ext.A5 dated 27.4.2013. The notices issued by the plaintiff terminating the tenancies and a reply thereof would irresistibly leave no manner of doubt that the schedule rooms were Waqf properties being a Waqf Alal-Aulad. Imbichayisabi was the Muthavally at the relevant point of time. The status of the petitioner in such circumstances was of only tenant which was terminated by issuing the notices at the behest of the Muthavally. Relevant para of the order under challenge reads thus:

There is another aspect that DW1 candidly admitted that by virtue of A4, Plaintiff, Waqf became the owner of the plaint schedule properties with effect from 2.5.2011 and had been paying rent subsequently also. The said fact has been extracted by the Tribunal in paragraph 22 of the impugned judgment. The same reads thus:

It is admitted by DW1 that by virtue of Ext.A4, the plaintiff Wakf became the owner of the plaint schedule buildings from 2.5.2011 onwards and they have paid rent after the execution of Ext.A4 and A5. It is the specific case of first defendant in both the cases that they have paid rent of the shop buildings up to the month of July 2015. In the words of DW1:- "Ext A4 and A5 ര ഖകൾക ര ഷവ വ ടക അന  യക ർക ക ടത ടണ.2005-July വ  യളത ക ടതത ർത ടണ. He  further  clarified  in  the  cross-examination  that  since  no demand was made by the plaintiff, the rent for the subsequent period was not given. Consequently, IA.1002/17 was filed by the plaintiff on the basis of the above said testimony meted out by DW1. Even though the petition was allowed allowing the tenants to pay the arrears of rent as admitted by DW1, they have not complied the order.

The aforementioned observations have not been controverted through any oral and documentary evidence to form different opinion.

As far as the other two cases are concerned, Section 7(6) of the Waqf Act empowers the Tribunal to assess the damages in respect of the premises by unauthorized occupation of waqf property and to penalize for illegal occupation. The same reads thus:

[(6) The Tribunal shall have the powers of assessment of damages by unauthorised occupation of waqf property and to penalise such unauthorised occupants for their illegal occupation of the waqf property and to recover the damages as arrears of land revenue through the Collector: Provided that whosoever, being a public servant, fails in his lawful duty to prevent or remove an encroachment, shall on conviction be punishable with fine which may extend to fifteen thousand rupees for each such offence.

It is a conceded position on record that petitioners both husband and wife despite order of eviction for four rooms noticed above, ibid, did not vacate the premises and therefore assessment of damages by taking into consideration the aforementioned provisions ie., the double of the lease amount in the following manner is perfectly justifiable. The details are as under:

O.S.1/2021.

1) Plaintiff is entitled to realise an amount of Rs.1,33,200/- (Rupees one lakh thirty three thousand and two hundred only) with 6% interest per annum for the said amount from the date of suit till realisation.

2) Plaintiff is entitled to realise an amount of Rs.3700/- (rupees three thousand and seven hundred only) per month from the date of suit till actual surrender of plaint schedule rooms with interest annum. @6% per

3) Plaintiff is entitled for proportionate costs of the suit.

O.S.2/2021.

1) Plaintiff is entitled to realise an amount of Rs.75,600/- (Rupees seventy five thousand and six hundred only) with 6% interest per annum for the said amount from the date of suit till realisation.

2) Plaintiff is entitled to realise an amount of Rs.2100/- (Rupees two thousand and one hundred only) per month from the date of suit till actual surrender of plaint schedule rooms with interest @6% per annum.

3) Plaintiff is entitled for proportionate costs of the suit.

We do not find any illegality and perversity in the judgments rendered by the Tribunal while decreeing the suit bearing OS No.38 and 39 of 2015 as well as WOS No.1 and 2 of 2021. Revision petitions sans merit. Accordingly, dismissed.