Prakash Jaryal vs H.P. Wakf Board Shimla And Others

Tarlok Singh Chauhan, J

Defendant No. 1/petitioner is aggrieved by the judgment and decree dated 31.5.2012, passed by learned Wakf Tribunal (District Judge) Kangra at Dharamshala in Civil Suit No. 03­D/I/2009 which held the plaintiff/respondent No. 1 legally entitled for recovery of rent for three years, prior to institution of the suit i.e. 17.1.2009 to the tune of Rs. 7200 /­ @ 200/ per month alongwith interest @ 9% per annum. It further held the plaintiff/respondent No. 1 to be entitled to recovery of illegal usage and occupation charges w.e.f. 17.1.2009 till delivery of possession @ Rs. 200/­ alongwith interest @ 9% per annum.

The parties shall be referred to as the plaintiff and defendants. The plaintiff filed a suit for possession on account of demolition of a temporary construction (khokha) existing over land comprised in khata No. 451,khatauni No. 679, khasra No. 951 min area measuring 10­2 sq. meters as per jamabandi for the year 2003­04, situated at Gabli Dhar, Mauza Khaniara, Tehsil Dharamshala, District Kangra. An additional relief for recovery of Rs. 55,600/­ was also sought against defendant No. 1 on account of arrears of rent w.e.f. 1.10.1996 to 31.3.1996 amounting to Rs. 22600/­ @ 200 per month.

It is averred that plaintiff is owner in possession of the suit property, over which it inducted defendant No. 1 as tenant, vide allotment order dated 22.2.2011 (Ext. P­4). It was averred that rent of arrears was fixed @200/­ but defendant No. 1 was regular defaulter in payment of rent. Not only this, defendant No. 1 violated the terms and conditions of the tenancy by raising a temporary construction (Khokha) on the rented land, that too without the approval and consent of the plaintiff. It was further pleaded that defendant No. 1 had sublet the land and temporary construction to defendant No. 2 without any authority and had also delivered the possession to him without any right and without consent of the plaintiff. Lastly, it was averred that the plaintiff required the suit land/property for its personal use and occupation and therefore it terminated the tenancy of defendant No. 1 w.e.f. 31.1.2006. Notice to this effect had been sent upon defendant No. 1 under Section 106 of Transfer of Property Act dated 7.3.2006. Defendants were requested to hand over the vacant possession of the suit land/property on or before 1.4.2006, but they failed to do so,hence the suit.

Defendant No. 1 contested the suit by filing the written statement, wherein preliminary objections regarding maintainability, form, valuation and jurisdiction were raised. On merits, it was pleaded that monthly rental of the suit premises/land had been fixed at Rs. 100/­ which was duly paid by defendant No. 1 all throughout and in this way, defendant No. 1 had not violated the terms and conditions of the tenancy.

Defendant No. 2 filed a separate written statement, wherein similar preliminary objections, as had been raised by defendant No. 1, were raised. On merits, it was pleaded that defendant No. 1 had not inducted defendant No. 2 as tenant and had also not delivered the possession of the land and temporary construction, as alleged.

Plaintiff filed replication wherein he re­ asserted and reitereated the averments made in the plaint and the contrary averments made in the written statement were denied.

Learned Court below on 2.3.2010 has framed the following issues:

Whether plaintiff is entitled for recovery of property and Rs. 55600/­(Rs. Fifty five thousands six hundreds) as alleged? OPP

Whether present suit is not maintinable as alleged? OPD

Whether suit has not been properly valued for the purpose of court fee and jurisdiction as alleged? OPD

Whether this Tribunal has no jurisdiction to try suit as alleged? OPD

Whether no cause of action accrued to plaintiff as alleged? OPD

Relief.

After recording the evidence and evaluating the same, learned Tribunal decreed the suit, as aforesaid, constraining defendant No. 1 to file the instant revision petition.

At the very outset, it is vehemently argued by Shri Ajit Singh Saklani Advocate that judgment and decree passed by learned Court below is coram non judice. For this purpose, he would rely upon Section 83(4) of the Waqf Act, 1995 (for short, “the Act”), which reads as under:

“83(4) Constitution of Tribunal, etc.: Every Tribunal shall consist of

(a) one person, who shall be a member of the State Judicial Service holding a rank, not below that of a District, Sessions or Civil Judge, Class I who shall be the Chairman;

(b) one person, who shall be an officer from the State Civil Services equivalent in rank to that of the Additional District Magistrate, Member;

(c) one person having knowledge of Muslim law and jurisprudence, Member;

and the appointment of every such person shall be made either by name or by designation”

Before dealing with the contention of defendant No. 1, it needs to be noticed that point of lack of jurisdiction has not been taken in the petition. However, since it goes to the root of the case, therefore, I deem it proper to adjudicate the same.

It needs to be noticed that the provisions quoted by the petitioner is one which was substituted by the Act of 27 of 2013, dated 20.9.2013. Prior to its substitution, sub section (4) read as under:

“Section 83 (4): Every Tribunal shall consist of one person, who shall be a member of the State Judicial Service holding a rank, not below that of a District, Sessions or Civil Judge, Class I, and the appointment of every such person may be made either by name or by designation.”

The judgment and decree passed in this case is dated 31.5.2012 i.e. before the substitution of sub­section (4) of the Act 27 of 2013. Since the judgment in question has been passed by learned District Judge, exercising the powers of Wakf Tribunal, therefore, the judgment and decree passed by it, cannot be termed to be coram non judice.

It is next contended that the judgment and decree passed by learned Court below is totally perverse, as it is not based on the correct appreciation of pleadings and the evidence led by the parties.

As regards the pleadings, the crux of the pleadings have already been reproduced and therefore, I would now proceed to deal with the evidence led by the parties.

PW­1 Beer Deen has filed his affidavit Ext. PW1/A in his examination in chief, wherein it is averred that the Civil suit was filed by Wakf Board and being familiar with the facts of the case, he was competent to swear on an affidavit, on its behalf. The contents of the plaint were reiterated in verbatim, as set out in the affidavit of PW­1 and therefore, the same need not be reproduced. He was cross­examined, wherein he denied the suggestion that defendant No. 1 used to pay rent @100/­ per month. He also denied the suggestion that defendant No. 1 Prakash Jaryal had not sublet the temporary shed construction in favour of defendant No. 2. He further denied the suggestion that notice under Section 106 of the Transfer of Property Act had not been served upon defendant No. 1. Lastly he denied the suggestion that defendant No. 1 was not in illegal possession of the suit property after termination of the tenancy.

DW­1 Prakash Jaryal filed his affidavit Ext. DW1/A in his examination­in­chief, wherein he has reiterated the contents of the written statement in verbatim. In his cross­examination, he admitted that the allotment order was made in his favour vide Ext. P­4. He has also admitted that site plan of the suit property is Ext. P­1. He further admitted that he did not pay rent @ 200/­ per month at any point of time. He further admitted that he had constructed the temporary construction voluntarily, that too without seeking permission of the plaintiff. Further, he denied that he had sublet the temporary shed in favour of defendant No. 2. He admitted that he did not register the shop under the Shop and Commercial Establishment Act. He denied the suggestion that he had violated the conditions of the agreement deed. He further denied the suggestion that rent of the premises was agreed at Rs. 200/­ per month.

Thus, what is established on record is that it was defendant No. 1 alone, who had been inducted as tenant vide allotment letter, Ext. P­4. As per recital of this document, defendant No. 1 was alloted a plot measuring 10.2 sq. meter on monthly rental of Rs. 200/­ and the tenancy commenced w.e.f. 1.11.1994. The vacant plot was alloted for a period of 11 months and it was clearly provided that defendant No. 1 would not sublet the property in question in any manner. It was also provided in the allotment letter, Ext.P­4 that no alterations and additions in the suit property were permissible without prior written permission of the Board. The further recital in the allotment letter states that any infringement of these conditions would result in cancellation of allotment without prior notice.

Now, the moot question is whether defendant No. 1 had violated the terms of allotment letter. It has been established on record that against monthly rental of Rs. 200/­, the petitioner, as per his own case, paid only Rs. 100 per month. The rate of tenancy of Rs. 200/­ per month is indisputable as the same is reflected in the allotment order, Ext. P­4.

It is pertinent to point out that defendant No. 1 did not place any cogent or reliable evidence on record to prove that rent of the premises was fixed at Rs. 100/­ per month and not Rs. 200/­ per month.

That apart, it is proved on record that the plaintiff had terminated the tenancy of defendant No. 1 by serving a notice under Section 106 of the Transfer of Property Act on 7.3.2006, wherein all the violations made by defendant No. 1, had been pointed out. The tenancy, as observed above, was only for a period of 11 months and the plaintiff did not renew the tenancy thereafter.

Once that be so, obviously the possession of defendant No. 1 over the suit land, after termination of the tenancny w.e.f. 1.4.2006 was totally unthorized and therefore, he was liable to pay not only monthly rental, but also the use and occupation charges.

Learned Court below has correctly appreciated the pleadings/oral and documentary evidence led by the parties and by no stretch of imagination can these findings rendered by the Court below be termed to be perverse, so as to call for interference.

In view of the aforesaid observations and discussion, I find no merit in this petition and the same is accordingly dismissed, leaving the parties to bear their own costs. Pending application(s), if any, are also disposed of.