Building Mosque Wakf vs Sheik Meera and Sons

Vilas V. Afzulpurkar, J.—This second appeal is filed by the Plaintiff against the concurrent judgments and decrees of both the Courts below dismissing the Plaintiffs suit for recovery of possession as well as for recovery of past and future mesne profits.

The Respondent herein is the tenant of the Appellant Wakf institution and admittedly the said tenancy is not protected under the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960. The appointed Mutawalli of the Appellant issued a notice of termination requesting the Respondent to vacate the premises by the end of July, 1978 and thereafter filed the suit for eviction. There were several other suits filed by the Plaintiff against other tenants and all the suits came to be decided by a common judgment of the trial Court dated 7.5.1986 whereunder all the suits were dismissed primarily on the ground that the Mutawalli of the Appellant is incompetent to file the suits. Questioning the said judgments and decrees, appeals were filed before the lower appellate Court.

Learned Counsel for the Appellant states that though the appeals were filed against dismissal of all the suits, pending the appeals all other tenants have settled the matter with the Appellant except the Respondent herein. The lower appellate Court went into the question as to whether a Mutawalli of Wakf institution can maintain the suits and concurred with the view of the trial Court that Mutawalli is incompetent and has no authority to file the suit, consequently it has dismissed the appeal. Hence this second appeal.

This second appeal was admitted on the substantial questions of law raised in paragraph No. 11 of Memorandum of Appeal, which are as follows,

(A) Whether there is permission accorded by the Chairman of the Board under delegated powers u/s 22 of the Wakf Act?

(B) Whether the suit is maintainable by the Mutawalli on the basis of the permission accorded by the Chairman of Wakf Board under Ex. A15?

(C) Whether the quit notice issued by the Mutawalli is valid u/s 106 of the Transfer of Property Act?

(D) Whether the Mutawalli is entitled to evict the Respondent and claim damages for use and occupation?

Heard learned Counsel for the Appellant who has relied upon decisions reported in Bhagabandas Agarwalla Vs. Bhagwandas Kanu and Others, , Syed Khersha Sajanshah Mutvalli Vs. The Bhuj Municipality and Another, and Mohammed Sab Wallad Gafar Sab Vs. Abdul Gani Wallad Mohammad Hayath, in support of the proposition that Mutawalli has all powers of management and administration of wakf and wakf properties. u/s 3(f) of the Wakf Act, 1954, Mutawalli is defined as follows:

(f) "mutawalli" means any person appointed either verbally or under any deed or instrument by which a wakf has been created or by a competent authority to be the mutawalli of a wakf and includes any person who is a mutawalli of a wakf by virtue of any custom or who is a naib-mutawalli, khadim, mejawar, sajjadanishin, amin, or other person appointed by a mutawalli to perform the duties of a mutawalli and, save as otherwise provided in this Act, any person, Committee or Corporation for the time being managing or administering any wakf or wakf property:

Provided that no member of a Committee or Corporation shall he deemed to be a mutawalli unless such member is an office-bearer of such Committee or Corporation.

The term "Mutawalli" is not only the person appointed as such, but also a committee which is entrusted with management and administration of wakf property and in case the wakf institution is taken over by the Wakf Board for the purpose of administration, the Board itself is a mutawalli. Section 36(e) of the Wakf Act, 1954 deals with the powers and duties of Mutawalli which includes all other acts which are lawfully required to be done by or under the Act. The Supreme Court in Bhagabandas Agarwalla v. Bhagwandas Kanu and Ors. (supra), cited by the learned Counsel for the Appellant, dealt with the aspect as to how a notice to quit u/s 106 of the Transfer of Property Act is to be constructed and held that hyper technical interpretation thereof is not warranted. Even otherwise, under the amended Section 106 of the Transfer of Property Act, which has been given retrospective effect, the notice to quit in the present case is clearly valid. The other decisions cited by the learned Counsel for the Appellant dealt with the question as to whether Mutawalli can institute a suit and held that it is part of the duty of Mutawalli to protect and safeguard the wakf property and take necessary steps for protecting the property which includes recovering the same from the encroachers. It is, therefore, clear that from a conjoint reading of Section 3(f) along with Section 36(e) of the Wakf Act, 1954 that Mutawalli has a duty to protect and preserve the properties of wakf which means and includes the power to take necessary legal proceedings against encroachers, trespassers, alienees and recover possession of wakf property from them. The entertainment of such a suit being in the interest of wakf institution, 1 am unable to appreciate the reasoning of the Courts below in holding that Mutawalli has no power to institute the suit. Therefore, Mutawalli has also a power to issue quit notice and recover possession from the tenants, which is part of his powers of management and administration of wakf or wakf properties. Both the Courts below, therefore, are not right in concluding that the Mutawalli in the present case had no authority to issue notice of eviction and file the suit for eviction. Apart from the aforesaid legal provision, the learned Counsel for the Appellant has also drawn my attention to the specific orders passed by the Chairman of Wakf Board which were exhibited as Ex.A15 in the suit. The Courts below have not taken the said document into consideration merely because it does not refer to the earlier direction of the Secretary requiring the Mutawalli to settle the matter with the tenant by accepting the enhancement of the rent. It cannot be disputed that the Chairman of the wakf Board has administrative and managerial powers over the wakf or wakf properties and control over the actions of the Secretary and he is competent to give permission to Mutawalli. Even apart from that, giving of permission being in the interest of Wakf institution, it cannot be said that any interest of the wakf was jeopardised by permitting the Mutawalli to file the eviction proceedings. The issuance of quit notice, instituting and prosecuting the suit for eviction against the tenant were within the powers of Mutawalli and therefore, the judgments and decrees of both the Courts below are clearly vitiated. Accordingly the substantial questions of law framed in Paragraph 11 of the Memorandum of Appeal deserve to be answered in favour of the Appellant. Consequently the Appellant is entitled to evict the Respondent and claim past and future mesne profits.

The decree under appeal so far as the eviction is concerned is, therefore, reversed and the suit filed by the Appellant for eviction of the Respondent shall stand decreed. The relief so far as the past profits is concerned, the Plaintiff is entitled to seek the relief of past profits at the same rate at which the agreed rent was being paid. So far as future profits from the date of filing the suit are concerned, the same shall be decided by the trial Court if the Appellant makes an application under Order 20 Rule 12 of the Code of Civil Procedure. In the event of such an application is made, the Appellant and the Respondent shall have opportunity to lead evidence and based on the evidence, the Court below shall determine the future profits and grant a decree to that extent.

It may be mentioned that though this second appeal was heard on 11.11.2010, there was no appearance by the Respondent, also on 12.11.2010 when the appeal was again posted awaiting the Respondent''s submissions. Even today also, nobody appeared for the Respondent either in the morning or in the afternoon.

In view of the legal position above, the second appeal is allowed with costs throughout.

Time for eviction is granted upto 31st January, 2011.